Land and Environment Court of New South Wales CITATION : Longstaff v Ku-ring-gai Council [2009] NSWLEC 1090 APPLICANT Julian and Kimberley Longstaff PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10029 of 2009 CORAM: Bly C KEY ISSUES: MODIFICATION APPLICATION :- Garage and streetscape Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Residential Design Manual - Development Control Plan No. 38 DATES OF HEARING: 20/03/2009 DATE OF JUDGMENT: 27 March 2009 APPLICANT Mr S. Kondilios, solicitor of Maddox Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P. Marinkowitz, solicitor of Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 27 March 2009 10029 of 2009 Julian and Kimberley Longstaff v Ku-ring-gai Council JUDGMENT Introduction 1 This appeal relates to a development consent (DA 0132/08) granted by the Ku-ring-gai Council on 28 April 2008 for alterations and additions to the existing dwelling house at No. 18 Warrawee Avenue, Warrawee. 2 On 26 September 2008 the applicant in these proceedings submitted to the council an application under s.96 of the Environmental Planning and Assessment Act 1979 for the modification of the development consent by the deletion of condition 2 therein. That condition requires increased side and front setbacks for the proposed new double garage that is to the attached to the existing house on its south side. Planning controls 3 The site is zoned Residential 2(c2) under the Ku-ring-gai Planning Scheme Ordinance wherein dwelling houses are permissible with development consent. Because there are several nearby listed heritage items, including the neighbouring property at 16 Warrawee Avenue, clause 61E of the PSO is applicable and requires that consent shall not be granted unless and assessment has been made into the effect of the carrying out of the proposed development on the heritage significance of any such item. This requirement has effectively been met by the consideration of the heritage experts. 4 It is relevant to note that under the PSO the existing house on the site is not a heritage item nor is it included in a conservation area. However as discussed below it is included in a proposed urban conservation area and adjoins a National Trust Urban Conservation Area. Also it was not in dispute that the site has status as a potential future heritage item. According to Mr Dignam the house has been assessed as a fine and largely intact example of a substantial residents constructed in the Georgian Revival style. 5 Also applicable to the site is the Ku-ring-gai Council's Residential Design Manual - Development Control Plan No. 38. Relevant aims of the DCP include the need to encourage development that does not dominate but instead harmonises with the treed landscape of the street and locality in which the proposal is located. Also the natural and built heritage significance of Ku-ring-gai is to be conserved and protected. 6 Section 4 of the DCP deals with design elements and in particular section 4.1 deals with streetscape objectives including: o The need for a development to be sensitive to its landscaped setting and the established character of the street and locality. o The need to ensure that new development is of a high visual quality and enhances the streetscape. o The need to conserve the natural and built significance of streetscapes of heritage value 7 Section 4.1.1 deals with visual character and requires that development conserve and enhance the visual character of the street with particular reference to architectural themes, building scale and setbacks, landscaped themes and fencing styles. The associated design requirements refer to a Visual Character study (Appendix A) that for pre-1920's development certain attributes be discouraged, relevantly here setbacks should not be reduced. 8 Section 4.1.3 deals with building setbacks requiring that development be appropriately located on site so as to maintain streetscape character. Being on the high side of the street, the relevant minimum setback requirement for single storey development on this site is 12 m. Also, development must be appropriately located having regard to the existing setback of adjoining properties and the setback pattern of the street block in which the proposal is situated. Where the predominant setback pattern of the existing streetscape reflects a setback that exceeds the required minimum (ie 12 m), the greater set back suggested by the street's character will apply. 9 Section 4.5 deals with access and parking and requires the integrated design of vehicle access and functional car parking facilities to minimise adverse visual and environmental impact on the streetscape. Section 4.5.2 deals with the size of car spaces setting a minimum length of 5.4 m. By comparison the internal length of the garage is proposed to be 6.2 m. Section 4.5.3 deals with the design of carports and garages that are to be sympathetic to existing development on site and take into consideration adjacent buildings. They should not dominate the site or the streetscape. The associated design requirements are that parking spaces whether covered or uncovered must be located behind the required front setbacks specified in the DCP or the building line defined by the existing dwelling whichever is the lesser. The hearing 10 The appeal was conducted as and on-site hearing when I had the opportunity inspecting the site of the proposed garage extension and Warrawee Street. I also heard from the following experts who also provided a joint report: o Mr M. Raymundo (respondent's planner) o Mr I. Glendinning (applicant's planner) o Mr P Dignam (respondent's heritage expert) o Mr G. Brooks (applicant's heritage expert) The contentions 11 Taking into account the statement of facts and contentions I understand that the application should be refused because, in essence, the proposed garage does not to meet the setback requirements of the DCP and would adversely affect the existing streetscape, taking into account its conservation significance and the nearby heritage items. 12 There was no issue with the building design itself although Mr Dignam believed that the single garage door should be converted into two separate doors divided by a brick pillar. The proposal 13 The proposed double garage is to be set back 12.3 m from the front boundary by comparison with the 15.5 m setback of the house. Also, relevant is the 9.6 m setback of the existing courtyard retaining wall and solid hedge that surrounds an existing courtyard in front of the house. The roof of the garage will be utilised as a terrace at the same level as the house's formal lounge with direct access via new French doors. The terrace is to have perimeter landscaping with steps down so as to integrate with the existing front courtyard. It will be set back 3.13 m from the southern boundary. 14 Access to the garage is to be by a curvilinear driveway that enters the site of Warrawee Avenue at its northeast corner such that the proposed garage will not be able to be viewed up a gun barrel driveway. 15 The landscape plan shows that existing canopy trees along the frontage are to be retained and supplemented with an additional angophora costata canopy tree. The existing immature lily pilly hedge along the majority of the frontage is to be retained and supplemented in the southeast corner with three Camellia japonica shrubs. The existing Xylosma japonica hedge along the southern boundary is to be retained. The evidence 16 There was little dispute that the existing house attracts some heritage significance and according to Mr Dignam, this together with the heritage significance of the other houses in the street gives the streetscape some heritage significance. Added to this is the Ku-ring-gai Urban Conservation Areas Study by Godden Mackay Logan (September 2005) that describes be existing house as a contributory item and including it in a proposed Warrawee Urban Conservation Area. 17 Whilst Mr Dignam had some concerns as to how of the proposed garage would affect the architectural balance or symmetry of the existing house his main concern, like Mr Raymundo was that it would have adverse consequences on the streetscape especially when the requirements of the DCP are taken into account. All of these concerns would be avoided if the garage were to be positioned behind, by as little as the thickness of one brick, the front facade/building line of the existing house. 18 Because streetscape is principally about the presentation of development in the affected street some time was spent in Warrawee Street opposite the site contemplating the extent to which the proposed garage would be seen and comparing this with the extent to which a garage in the position acceptable to the council would be seen. In streetscape terms, in both instances the garage structure will be variously seen from a viewing position directly opposite in Warrawee Street to a viewing position a short distance to the north of the boundary between 18 and 20 Warrawee Street. More particularly when viewed from directly opposite, an increased setback would in my opinion make little difference in terms of its visual impact. However when viewed from the viewing positions further to the north the garage structure as proposed will appear as being somewhat wider than, by comparison, if it were setback to the extent contended by Mr Dignam and Mr Raymundo. 19 Mr Raymundo said that the streetscape is characterised by street trees, front fences, street edge, landscape, spatial separation between buildings, gardens combined with large houses with substantial front setbacks. He pointed out that the streetscape is different on both sides of the street with setbacks on the west side being more uniform than those on the east side. 20 Mr Glendinning described the streetscape in a similar fashion but contends that there are a variety of front setbacks. Whilst they agreed that appropriate landscaping could be provided they disagreed as to the impact of the garage in its position forward of the existing building. Mr Raymundo said that the garage is unacceptable because of its visual impact and does not retain the existing large front setback character. Also, the location of the proposed garage is unsympathetic with the existing streetscape character … of large front setbacks. 21 Mr Glendinning considers the setback to be acceptable because the streetscape character is defined by the trees, landscaped gardens, and front fences and not by the dwellings themselves. Also the garage would not have an adverse streetscape impact, as it is located below the existing facade of the house. It would not be a dominating feature in the streetscape and is compliant with the 12 m minimum requirement. In this context he pointed out that the average of all setbacks on the site would be 16 m. Overall the development on this site would maintain streetscape character, taking into account the variety of setbacks in the streetscape and notwithstanding that the garage will to some extent be able to be seen. Also, the existing and proposed landscaping will continue to contribute to and embellish the streetscape 22 Mr Dignam and Mr Brooks also disagreed as to an appropriate setback requirement. Mr Brooks was of the opinion that the garage has been carefully designed and sited to be subservient to the dominant character of the house. 23 Mr Dignam noted and adopted earlier concerns that the garage was unsatisfactory due to its broad garage door and insufficient setbacks. Taking into account that the site has heritage significance and because this part of Warrawee Avenue warrants inclusion in a conservation area the streetscape concerns attract greater significance. Hence, additional garaging on the site should be located behind the front building line so that the architectural strength and balance of the façade … is not compromised. In his oral evidence he explained that his concerns mainly involved streetscape character and that the sought setback is necessary to make the garage less dominant and reduce its visual impact. 24 Mr Brooks disagreed explaining that the garage has been designed and sited to be subservient to the dominant character of the house and acceptable, also taking into account the existing and proposed landscaping and the overall character of the streetscape. Relevantly the proposed setback is located behind the existing landscaping terrace and the existing front sandstone steps both of which contribute to the character the house presents to the street. The modelling around the garage door breaks down massing that is further reduced because the garage is set on the downward slope from the house. The relative location of the proposed setback will he explained be immaterial when compared to the sought increased setback. In his oral evidence he said that the character of the street predominantly involves strong landscaping, often including dominant front fences and hedges and houses. In this context he concluded that in streetscape terms the difference in setbacks would be marginal taking into account that the garage would be subservient to the house and any views of it would be filtered by the landscaping that will, as it matures provide further screening. Also positions in the street where the garage will be able to be viewed from are quite limited. Court's conclusions 25 There was little disagreement between the experts that the impact of the proposed garage on the existing house would be satisfactory. I too am convinced that this aspect of the proposal is essentially satisfactory, taking into account the extent to which the house attracts heritage significance. Indeed, leaving aside the streetscape and setbacks issue I find the design of the garage, particularly the manner in which it relates to the house and the courtyards and gardens to be of high quality. Despite this I agree that certain changes would be appropriate and beneficial. 26 As indicated above section 4.5.3 establishes a minimum length of car space of 5.4 m and if this minimum is not exceeded this would shorten the garage and increase its setback by 800 mm from 12.3 m to 13.1 m. In my opinion such an increased setback would be marginal but sufficiently beneficial in streetscape terms and in terms of the relationship of the garage to the house to justify its imposition. Should the applicant wish to maintain longer car spaces then the additional length could be obtained at the rear. 27 I also agree that, consistent with the DCP requirement that garages be sympathetic to existing development the suggestion that the proposed single full width garage door be converted into two garage doors by the provision of a central brick pillar. Notwithstanding the resulting change to the proportions of the garage's facade, the benefit here would, again, be marginal but sufficient to justify its imposition. 28 Despite its compliance with the applicable 12 m setback requirement in section 4.1.3 of the DCP, it is plain that the garage does not comply with the predominant setback pattern requirement even taking into account the above-mentioned additional 800 mm setback that increases the setback to 13.1 m. Similarly it does not comply with the car parking requirements in section 4.5.3 that it be located behind the building line defined by the existing dwelling. Despite this and having considered all of the evidence I have decided that because its impacts on the streetscape would not be unreasonable it can be approved subject to the above changes 29 In reaching this conclusion I have been persuaded by the evidence provided on behalf of the applicant by Mr Brooks and Mr Glendinning. There are a number of particular aspects of their evidence that I find to be determinative. 30 First, I agree that in general the trees, landscaped gardens and front fences dominate the streetscape. Although the larger houses in the street are apparent, views of them are filtered or screened by the landscaping. 31 Second, whilst this will be one of the closest structures to the street setbacks are generally variable. In this regard I note that only a relatively small footprint occupying less than one third of the width of the site projects beyond the house. 32 Third, the proposed setback is positioned behind the existing retaining wall and solid hedge associated with the existing courtyard. This has a mitigating effect on the impact of the garage projecting in front of the house. 33 Fourth, the height of the garage structure extends only 750 mm above the ground floor level of the house that is over 5 m taller than the top of the planter box around the perimeter of the terrace. This reduces, by comparison, the relative bulk of the garage. 34 Fifth, there are few viewing positions where the difference between the proposed position of the garage and a garage situated behind the house would be readily apparent. As the landscaping matures it will be even less apparent. 35 Also, taking these matters into account I accept the evidence of Mr Brooks and am satisfied that there would be no adverse consequences associated with the potential for Warrawee Avenue to become a conservation area. I have therefore decided to uphold the appeal and modify the consent as sought but subject to the above described changes. Orders 36 The orders of the Court are therefore: 1. The appeal is upheld. 2. Development consent DA 0132/08 granted by the Ku-ring-gai Council on 28 April 2008 for alterations and additions to the existing dwelling house at No. 18 Warrawee Avenue, Warrawee is amended as follows: (i) Condition 1 is deleted and replaced with the following: 1 Approved architectural plans and documentation (alterations and additions) The development must be carried out in accordance with work shown in colour on the following plans and documentation listed below except where amended by other conditions of this consent: Architectural Drawings No Issue Title Author Date A1/7 AC Site Plan David White Architect July 2008 20 November 2007 A2/7 BD Lower Floor Plan David White Architect July 2008 20 November 2007 A3/7 D Ground Floor Plan David White Architect July 2008 A4/7 B Upper Floor Plan David White Architect February 2008 A5/7 C North and East Elevation David White Architect July 2008 A6/7 C South and West Elevation David White Architect July 2008 A7/7 C Section A-A & B-B David White Architect July 2008 LC01 B Landscape Plan Selena Hannan Landscape Design 22 August 2008 Reason: To ensure that the development is in accordance with the determination of the Court. (ii) Condition 2 is deleted and replaced with the following: 2 Details of garage The dimensions of the garage shown on Drawing A2/7 "Lower Floor Plan", Issue D, dated July 2008 are "6.8 x 6.2" and the "setback to front boundary 12.3 m". The drawing must be changed to read either "6.2 x 6.2" or "6.2 x 5.4" and to read "setback to front boundary 13.1 m". The single garage door is to be amended by the provision of two garage doors separated by a central pillar. Details of the amendments are to be submitted to the Principal Certifying Authority prior to the release of the Construction Certificate. Reason: Correct error on drawing and apply Court's requirements. (iii) Condition 16 is deleted 3. Exhibit A is retained _______________________ T A Bly 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.