Shields v Waverley Council [2010] NSWLEC 1239

Land and Environment Court of New South Wales

CITATION : Shields v Waverley Council [2010] NSWLEC 1239

APPLICANT Andrea Shields PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10317 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to an existing dwelling - side setback - floor space ratio - privacy - overlooking

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006(Amendment 4)

DATES OF HEARING: 28 July 2010

EX TEMPORE JUDGMENT DATE : 28 July 2010

APPLICANT Ms S Duggan, barrister SOLICITORS Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

28 July 2010

10317 of 2010 Andrea Shields v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal of DA104/210 by Waverley Council (the council) for alterations and additions to an existing dwelling at 84 Queens Park Road, Queens Park (the site). 2 The council's Statement of Facts and Contentions identify issues relating to unacceptable impacts on the streetscape, heritage impacts, the size and bulk of the additions, inadequate setbacks, loss of privacy, inadequate landscaping and inadequate information although the council accepts that a number of these issues could be resolved by way of conditions of consent, if the application was to be approved. 3 Two local residents provided evidence on site and supported the contentions raised by the council. The residents also raised additional concerns relating to overshadowing, loss of privacy from windows and the proposed roof garden and non-compliance with the setback requirements for the proposed swimming pool. The site 4 The site has a southern frontage of 12.19 m to Queens Park Road and a similar frontage to Arnold Street to the north. The side boundaries are each 54.685 m, giving a total site area of 668.7 square metres. 5 The site contains a freestanding single storey late Federation bungalow at the Queens Park Road frontage and a double garage off Arnold Street. The area is predominantly residential in character with Queens Park located on the opposite side of Queens Park Road. The proposal 6 The proposal provides for alterations and additions to the existing dwelling including a new roof to allow the use of the roof space for a master bedroom. A new two-storey structure is to be located behind the existing dwelling and provides three new bedrooms at the upper level and a kitchen, breakfast room, family room and dining room on the ground floor. A pool equipment room is located in a basement area. A new swimming pool and double garage with access from Arnold Street are also proposed. Relevant planning controls 7 The site is within Zone 2(a)-Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent in this zone. The site is not listed as a heritage item or within a heritage conservation area but is within the vicinity of a State and local heritage item, being Queens Park. 8 Waverley Development Control Plan 2006(Amendment 4) (DCP 2006) applies. The site is located within the Queens Park Residential Character Study area with specific provisions provided at s 3.00. Section 3.2.6 provides a description of the existing character elements and s 3.3.3 provides objectives for the character area. 9 For streetscape, the relevant design future character objectives are: 2 .1 To reinforce the existing street categories through appropriate building façade, building setback, fence and landscape gestures. 2.2 To encourage dwelling styles that integrates with the established front, rear and side streetscapes. 2.3 To maintain streetscape character through consistent building setback, particularly where a building is part of a row of identical buildings. 10 The relevant performance criteria are: 2.1 New development and alterations and additions to existing dwellings should be compatible and consistent with development both in the immediate vicinity and in the overall context of the street. 2.2, Where properties have side street or rear lane frontages, alterations and additions reinforce the desirable side or rear setbacks. 2.3 Building setbacks, terraces, balconies and rooflines are consistent within the defined street corridor and provide uniformity to a group of terraces or mirror an attached semi. The evidence 11 Expert town planning evidence was provided by Mr Kerry Nash for the council and Mr Lewis Adey for the applicant. Expert heritage evidence was provided by Mr Robert Moore for the council and Mr Stephen Davies for the applicant. The experts provided joint reports for their respective fields of expertise and remained in dispute over a number of specific areas. These can be generally grouped into: 1 the bulk and scale of the proposal when viewed from Queens Park Road and, 2 the design of the dormer windows in the new roof of the existing dwelling. The amended design 12 Following the site view, the parties were requested by the Court to undertake a review of the height of the proposed second storey additions at the rear and also the design of the proposed dormer windows. Following a short adjournment to consider the Court's request, the experts agreed that with a reduced overall height of 890 mm for the second storey addition and an amended dormer design, their concerns over the proposed development would be satisfactorily addressed. 13 The amended proposal was put to the two residents who gave evidence on site, with one resident not wishing to make any further comment. The second resident maintained that the amended proposal did not fully address her concerns previously raised on site. Her remaining concerns related to: 1. the inadequate side setback of 900 mm; 2. the breach of the floor space ratio (FSR) and landscaping requirements in DCP 2006. 3. the likely use and impacts on privacy of a side door that adjoins the resident's property, and 4. the potential overlooking from the proposed roof garden.