Land and Environment Court of New South Wales CITATION : Quinton - Margalit Architects v Waverley Council [2008] NSWLEC 1389 APPLICANT Ted Quinton & Harry Zyi Margalit trading as Quinton - Margalit Architects PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10252 of 2008 CORAM: Hoffman C KEY ISSUES: Development Consent :- Alterations and additions to existing house, parking, street trees, streetscape Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 CASES CITED: Cameron v Waverley Council (2006) NSW LEC 473 DATES OF HEARING: 04/09/2008 EX TEMPORE JUDGMENT DATE : 4 September 2008 APPLICANT Mr M. Staunton, barrister Instructed by Neil Lawson & Co LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 4 September 2008 10252 of 2008 Ted Quinton & Harry Zyi Margalit trading as Quinton - Margalit Architects v Waverley Council JUDGMENT 1 This is a Class 1 appeal, No. 10252 of 2008, between Quinton-Margalit Architects and Waverley Council in regard to some conditions of a consent for alterations and additions to No. 17 Henry Street, Queens Park. The existing house is two-storey in a traditional symmetrical design likened to the Georgian style. The second storey was added in 2001. There had been other alterations and additions previously to what was, according to the evidence, a single-storey worker's cottage of the Victorian period. The Victorian character is now lost. 2 The conditions objected to were conditions Nos. 2A and 2B of DA271/2007. Part of the alterations and additions application include converting a ground floor street-front bedroom into a single car garage and a new front fence in place of the existing picket fence. The conditions appealed required the deletion of the garage and the retention of the existing front façade and the picket fence. 3 In the original plans refused, the garage had commenced at the eave line of the front veranda. The applicant had prepared amended plans in Exhibit A and a further amendment in Exhibit G. The main change is to remove the garage back into the building so the garage door is at the front wall of the house and therefore recessed under the veranda roof that is to be rebuilt more or less as existing but with columns re-spaced. Also the changes reduce the loss of on-street parking to one instead of two and ensures the retention of existing street trees previously lost. 4 The issues were reduced as a result and are as follows. 1. The proposed deletion of conditions 2A and 2B from the development consent should not be approved as the proposed development will detract from the amenity of the locality and will not satisfy specific aims and zoning objectives of the Waverley Local Environmental Plan 1996 . Particulars: a) The proposal fails to satisfy clause (3)(7)F contained in pt 1 of the Waverley Local Environmental Plan 1996 in that it does not improve the amenity of its residential area. b) The proposal fails to comply with objective B of the residential 2B zone contained in pt 2 of the Waverley Local Environmental Planning 1996 in that it does not maintain and improve the amenity of the locality. 2. The proposed deletion of conditions 2A and 2B should not be approved as the proposed development will have an unacceptable impact on the streetscape and architectural integrity of the existing dwelling. Particulars: a) The proposal fails to satisfy the performance criteria set out in 2.1 streetscape, 3.3 landscaping and 4.2 architectural style contained in cl 3 Queens Park character study of pt D1 of Waverley Development Control Plan 2006 amendment number 2. b) The proposal fails to satisfy objective C of clause 5.4 streetscape and visual impact and strategy 5.4.1A contained in pt D1 of Waverley Development Control Plan 2006 in that it is not development which is visually sympathetic to other buildings in its vicinity and to the streetscape it belongs to. c) The proposal fails to satisfy objective A of cl 5.7 vehicular access and parking and strategies 5.7 point 1, point 2 and point 3 contained in pt D1 of the Waverley Development Control Plan 2006 . d) The proposal fails to satisfy pt 1 of Waverley Development Control Plan 2006 in that it: (i) Does not satisfy the objectives out in cl 1.2(B) and (D) as the proposal will detract from the streetscape and the architectural integrity of the existing building and adversely impact pedestrian and kerbside amenity respectively. (ii) Does not satisfy the design considerations set out in cl 5.1 and 5.2(B) in that it is proposed to alter part of the existing building to primarily provide car parking and control in cl 5.3(B) as parking is not characteristic of the lot or the existing building. 3. Parking. The proposed deletion of conditions 2A and 2B should not be approved as the proposed development will have an unreasonable impact on the public domain as the adjoining street tree will be adversely affected and the new crossing will result in a loss of kerbside parking capacity in the locality. Particulars: a) The proposal will provide for the loss of up to one kerbside parking space with the modified driveway crossing recommended. b) Is deleted and related to the welfare of the two street trees. c) Kerbside parking is considered more efficient than a private onsite space as it can be used 24 hours a day, therefore it is contended that the proposal provides for a net loss of car parking capacity in this locality. d) The proposal fails to satisfy objective C of cl 5.7 contained in part D1 of the Waverley Development Control Plan 2006 in that it does not minimise the loss of on-street car parking. e) The proposal fails to satisfy the design consideration set out in s 5.1 of pt I1 of Waverley Development Control Plan 2006 in that it will: (i) Does not ensure the existing on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings. (ii) Does not maintain pedestrian and cyclist amenity on this street. (iii) Does not ensure that landscape design deep soil zone provision and drainage are not detrimentally affected by the provision of onsite car parking. (iv) The provision of a car space is not warranted and the traffic planning approach in cl 3.9.3(A) contained in pt D1 in that the proposal involves a loss of accommodation gross floor space of the site. 4. Landscaping. The proposed development should not approved as the proposed landscaping is inadequate; a) The proposal fails to satisfy objective A of cl 5.8 contained in pt E1 of the Waverley Development Control Plan 2006 in that the proposed landscaping fails to enhance the amenity for site streetscape and surrounding neighbourhood. Issues 4B, C and D were deleted. 5 The parties sought at the view to convert the hearing to be on site. This was granted and in attendance were Mr Staunton, barrister for the applicant, Mr Blyth, town planner, Mr Quinton, architect, and for the respondent were Mr Patterson, solicitor, Mr Bull, town planner. There were no objectors to the proposal. 6 There was evidence about the description by Mr Bull that the front façade of the building is historic, but in cross-examination he agreed that is just his word for period style. There was no intention of a reference to heritage or conservation value. The locality is not a conservation area under the statute and there are no heritage items nearby. 7 The respondent's evidence in the end revolved around the Waverley Development Control Plan 2006 amendment No. 2 provisions that seek to maintain and enhance existing character and streetscape and provisions that say no demolition or alteration of existing buildings primarily to provide private car parking except where topography or appropriate design allows. Plus, there is the council's wish in the DCP to minimise car ownership in future and encourage use of public transport. The latter issue centred on the loss of one on-street public car space for one private car space where the parties agreed Henry Street had a relatively high demand for on-street parking. 8 Linking these issues together is one clause of the DCP in part I1 cl 5.0 which states: "Urban design streetscape and heritage conservation; the local government area has older established areas which were designed and built before the widespread use of cars. The retrospective provision of off-street car parking has caused significant impacts on streetscapes and has impacted upon the amenity of pedestrians and cyclists". 9 Mr Bull said Henry Street has a contextual flavour of older buildings of the Victorian period mixed with a variety of styles from other periods. Number 17 has a strongly symmetrical design and although of 2001 vintage, its Georgian design fits into this context. Inserting the garage he said contravenes cl 5(2)B because it is not an appropriate design due to the disruption of the symmetry, both by the insertion of the garage door and the removal of the existing picket fence and replacement with a stone fence on one half of the front boundary and a palisade fence on the other half and the opening for the garage driveway. 10 In cross-examination, Mr Bull said that his concern over the new front fence was not sufficient for refusal. An additional consideration is that the house is set back only 1.5 metres from the front boundary to the veranda and 3 metres to the front wall, so a car parked in the drive will block the public footpath. This is a minor issue put by the respondent and did not occupy any significant time in evidence. 11 Mr Blyth and Mr Quinton said due to several factors the disturbance of the symmetry cannot be sufficient reason for refusal. The factors are: 1. The aesthetics are a matter of personal taste that vary from person to person. 2. The lack of a conservation area or heritage items and the variety of architectural periods and styles in the street give it an eclectic character, not a Victorian context. 3. The new houses in the street approved by council and some only recently completed are contemporary in style, are asymmetric in design and with garages, both single or double incorporated into the design. 4. Sixteen out of thirty-seven lots in the street have garages and about twelve of the remaining are too narrow to permit a garage to be inserted into the street façade. But garages are part of the context and this proposal creates no precedent. 5. The loss of one on-street car space is minimal and the existing house has five bedrooms reduced by this proposal to four bedrooms thus reducing demand. Even with four bedrooms, the house still rates at two car spaces under the development control plan and the applicant only wants one on site so the application is not excessive. 6. The existing house is really 2001 vintage so there is no reason to keep it as is. 7. The overall envelope or profile of the house will remain symmetrical since the upper storey and the veranda roof remain as is. The garage door is unobtrusively recessed. 8. Mr Bull had no quarrel with the new front fence being asymmetric, it being designed with a stone fence on one side and a palisade fence on the other. 9. The controls in the development control plan on maintaining symmetry relate to semi-detached and attached houses to prevent one half being mismatched to the other. This is a freestanding house. The symmetry issues relate to the appeal Cameron v Waverley Council (2006) NSW LEC 473 and this was raised by the respondent, but it is clearly distinguishable from this proposal being a freestanding house. 12 In considering these matters, I must say the existing house, being strongly symmetrical and in the Georgian style, is very attractive in its own right and does fit well with the older houses in the street. Insertion of the proposed garage et cetera that will make it asymmetrical in parts while having the envelope or profile attempt to retain the symmetry, can only result in a lessening of its clear, clean and dignified character in my opinion. 13 The new front fence instead of pickets will only add to the mix of styles between the Georgian and whatever the alterations might be termed. Nevertheless, the council officers' report by Ms Rossi and Mr Brady supported the proposal with the garage inserted and, as Mr Blyth and Mr Quinton said, aesthetics is a matter of personal taste therefore I should not determine this appeal on my preferences. The character in the street is an eclectic mix of styles from various periods, some with and some without garages. 14 The council has given recent approval of several new houses, being the next four or five houses along the street starting with No. 17's immediate neighbour. All of them are asymmetrical in design and all with one or two-car garages or parking spaces in the front façade. The character or context Mr Bull advances of Henry Street being of the Victorian era is fast disappearing and it is clearly not the future character of this end of Henry Street. Therefore, I find no reason sufficient for refusal and uphold the appeal with conditions as in Exhibit 2 as annotated by the applicant. 15 Therefore the Orders of the Court are: 1 The appeal is upheld. 2 Development Consent DA-271/2007 for the proposed alterations and additions at No. 17 Henry street, Queens Park is amended as in Drawing DA01 to DA07 Revision B as amended by Drawing DA03 Revision C and D in Exhibit G of this appeal all subject to conditions in Annexure A hereto. 3 The exhibits are returned to the parties except exhibits 2, 5, A, E and G. ___________________ 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. 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