Land and Environment Court of New South Wales CITATION : Berson L. v Waverley Council [2007] NSWLEC 62 APPLICANT: PARTIES : Lynne Berson RESPONDENT: Waverley Council FILE NUMBER(S) : 10890 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Character and visual amenity of the streetscape; and· Unreasonable privacy and noise impacts. LEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 17/11/2006 and 08/02/2007 EX TEMPORE JUDGMENT DATE : 8 February 2007 APPLICANT: Mr M E McMahon, solicitor SOLICITORS: LEGAL REPRESENTATIVES: M E McMahon RESPONDENT: Mr S H Patterson, solicitor SOLICITORS: Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 08 February 2007 10890 of 2006 - Lynne Berson 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 refuse a development application to add to an existing garage to provide for parking for two vehicles and a roof deck at No 14 Myuna Road, Dover Heights. 2 I visited the land in company with the parties on the morning of the hearing and amended plans were agreed. 3 I have concluded that as amended the consent orders now agreed by the parties may be endorsed. The land 4 The land is situated on the northern side of Myuna Road in Dover Heights. The land has a frontage of 9.145m to Myuna Road, a depth of around 37.146m and an area of 339.7m2. 5 Erected on the land is a two-storey dwelling house with a single garage recessed within a basement. Concrete driveway access to the existing basement is across the front yard. 6 The land is not within a conservation area. There are many two-storey and three-storey dwelling houses in the street and some take advantage of the ocean views. 7 Nearby is Dudley Page Reserve, Rose Bay Shopping Centre, Bondi Beach commercial area, Bondi Beach and Bondi Golf Course. Relevant planning controls Waverley Local Environmental Plan 1996, (WLEP) 8 Under the provisions of the WLEP the land is zoned residential 2A and the proposal is permissible with consent. Waverley Development Control Plan No 2 – Dwelling houses and dual occupancy development, (DCP2) 9 DCP2 applies to the land. Waverley Development Control Plan No 14 – Land use and transport, (DCP14) 10 DCP14 applies to the land. Waverley Development Control Plan No 29 – Advertising and notification of development applications, (DCP29) 11 DCP29 applies to the land. The proposal and its history 12 Development application No 152/2006 was lodged with the respondent council on 28 March 2006 to add to an existing garage to provide for parking for two vehicles and a roof deck on the land. Notification 13 The application was notified to nearby owners and occupants for fourteen days and the council received no objections. The council's decision 14 By notice dated 19 May 2006 the council refused the application for the following reasons: 1. The proposal does not satisfy Clause 2(c) - General Aims of Waverley Local Environmental Plan 1996, having - regard to section 79C(1)(a)(i) of the Environmental Planning Assessment Act 1979. 2. The proposal does not satisfy Clause 3(7)(f) - Specific aims of Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979. 3. The proposal does not comply with the Residential 2(a) - Low Density Zone objective (b) of Waverley Local Environmental Plan 1996, having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979. 4. The proposed development is considered contrary to the Council's Development Control Plan No 2 in respect to the following provisions of the DCP: (a) The control and objectives concerning Part 7 Size and Bulk of Dwelling Houses, in particular the non-compliance with the floor space control is not supported in this instance or is the overall bulk of the proposed building. (b) The control and objectives concerning Part 8 Setbacks, in particular the non-compliance with the front building line setback is not supported in this instance since the proposed double garage would be a dominate feature in the streetscape, adversely affecting the character and visual amenity of the streetscape. (c) The objectives concerning Part 9 Streetscape and Visual Impact, in particular the objective requiring dwelling-house development to be visually sympathetic to other buildings in its vicinity and to the streetscape of which it is part. (d) The objectives and standards concerning Part 11 Privacy and Noise Control, in particular the size and location of the roof terrace is considered to be excessive and likely to create unreasonable local amenity impacts. (e) The objectives and standards concerning Part 12 Vehicular Access and Parking, in particular the non-compliance with the number of permitted on-site car parking spaces and the location of the proposed double garage is not supported in this instance since the proposed garaging detracts from the streetscape presentation of the building. (f) The objectives and standards concerning Part 13 Landscaped Open Space, in particular the non-compliance with the front landscaping requirements is not supported in this instance since this area of non-compliance would be detrimental to the character and visual amenity of the site, streetscape, and surrounding neighbourhood. 5. The proposed development is considered contrary to the Council's Development Control Plan No. 14 Land Use and Transport in respect to the following provisions of the DCP: (a) Objective ensuring that the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation. (b) Design Consideration 4.2(a), which states that all car accommodation is to be located behind the front building line. Having regard to section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 . 6. The location of the proposed double garage and associated roof terrace is considered to be detrimental to the character and visual amenity of the existing streetscape, having regard to section 79C(1)(b) and (c) of the Environmental Planning and Assessment Act 1979. The hearing 15 The appeal was filed on 25 September 2006. 16 Ms Z Flannery, Senior Assessment Officer of Waverley Council prepared the statement of basic facts filed 6 November 2006. The issues 17 On 3 November 2006 the council filed a statement of issues. Non-compliance with Waverley Local Environmental Plan 1996 1. The proposed development should not be approved as it does not comply with the general aims set out in clause 2(c), the specific aims set out in clause 3(7)(f) and objective (b) of the Residential 2(a) - Low Density Zone as set out in Waverley Local Environmental Plan 1996 ("WLEP 1996"). Particulars a. The proposed development does not improve the amenity and existing characteristics of its locality and environmental quality of the built environment; b. the location of the proposed double garage and associated roof terrace will be detrimental to the character and visual amenity of the existing streetscape; and c. the location and size of the proposed roof terrace will cause unreasonable privacy and noise impacts. Non-compliance with Development Control Plan No. 2 - Dwelling House and Dual Occupancy Development 2. The proposed development should not be approved as it does not comply with the provisions of Development Control Plan No. 2 - Dwelling House and Dual Occupancy Development ("DCP No. 2"). Bulk and Scale a. The proposed development does not comply with the Floor Space Ratio control as set out in Part 7 - Size and Bulk of Dwelling Houses. Particulars: i. the permitted FSR is:0.71:1; ii. the proposed FSR is 0.8:1; and iii. the size and bulk of the proposed development is not in character with surrounding development. Setbacks b. The proposed front building line setback does not comply with the controls and objectives set out in Part 8 - Setbacks. Particulars: i. The proposed double garage would become a dominant feature in the streetscape; and ii. The dominance of the proposed double garage would have an adverse impact on the character and visual amenity of the streetscape. Streetscape c. The proposed development does not comply with the objectives of Part 9 - Streetscape and Visual Impact. Particulars i. The proposed development is not visually sympathetic to the other buildings in the vicinity and the streetscape of which it is a part. Privacy and Noise Control d. The proposed development does not comply with the objectives of Part 11 - Privacy and Noise Control. Particulars i. The location and size the proposed roof terrace will have a detrimental acoustic and privacy impact on neighbouring properties. Vehicular Access and Parking e. The proposed development does not comply with the objectives of Part 12 - Vehicular Access and Parking. Particulars i. The proposed double garage will unreasonably detract from the streetscape will become a dominant feature in the streetscape; ii. The proposed off street parking exceeds the permitted number of car spaces by one space; and iii. The double garage is not located behind the front building line. Landscaped Open Space f. The proposed development does not comply with the requirements of Part 13 - Landscaped Open Space. Particulars i. The permitted minimum area of landscaping between the front of a building and the street alignment is 50%; ii. The proposed amount of landscaping between the front of the building and the street alignment is 10.5m2 (25%), iii. The proposed landscaping will detract from the character and visual amenity of the site, streetscape and surrounding neighbourhood. Non-compliance with Development Control Plan No. 14 - Land Use and Transport 3. The proposed development should not be approved as it does not comply with the provisions of Development Control Plan No. 14 - Land Use and Transport ("DCP No. 14") having regard to off-street parking. Off Street Parking a. The proposed development does not take into account considerations relating to urban design, streetscape and heritage conservation Part 4 of DCP 14. Car Parking Rates b. The proposed development should not be approved as it does not comply with the provisions of DCP No. 14 having regard to car parking rates set out in Part 2.1: Particulars i. The car parking rate states that a minimum of nil parking spaces and a maximum of one (1) parking space be provided for a three bedroom single dwelling house; iii. The proposed development exceeds the maximum car-parking rate by one as it proposes two car parking spaces. Design Consideration c. The proposed development should not be approved as it does not comply with the provisions of DCP No. 14 having regard to Consideration 4.2(a) which requires all car accommodation to be located behind the front building line. Public Interest 4. The proposed development should not be approved, as it is not in the public interest. 5. The proposed development should not be approved having regard to the submissions received by Council. 18 The following emerged as the salient issues: · character and visual amenity of the streetscape; and · unreasonable privacy and noise impacts. The evidence and findings Character and visual amenity of the streetscape 19 During the site inspection the applicant agreed to prepare amended plans that would give a greater setback to the face of the new extension from the front boundary. The benefit of this change was that the proposed double garage would be set back from the street so as to not appear as dominant in the streetscape. Also a vehicle manoeuvring area could be provided in the front setback that would allow sufficient turning area within the land and on the footpath to enable the street tree in front of the land to be retained. Unreasonable privacy and noise impacts 20 The amended plans showed the first floor balcony reduced in depth to 1.5m maximum, so that the concerns held by the council with respect to the original plans in respect of the use of the balcony and resulting privacy and noise impacts would be ameliorated. 21 The parties have now agreed to consent orders that I am pleased to endorse. 22 For the above reasons, the appeal is upheld by consent. Conditions 23 The conditions are those in Exhibit 2. Consent orders 24 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 152/2006, lodged with the respondent council on 28 March 2006, to add to an existing garage to provide for parking for two vehicles and a roof deck at No 14 Myuna Road, Dover Heights, is approved subject to Conditions 1 to 29 in Annexure A. 3. Exhibit 1 is returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.