Land and Environment Court of New South Wales CITATION : Cusack & Morrison v Waverley Council [2007] NSWLEC 873 APPLICANT Andrew Cusack & Kerry Morrison PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10968 of 2007 CORAM: Tuor C KEY ISSUES: Development Application :- replace existing retractable awning with covered pergola. Consistency with row of terraces and streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 CASES CITED: Project Venture Developments v Pittwater Council (2005) NSWLEC 191 DATES OF HEARING: 12/12/2007 EX TEMPORE JUDGMENT DATE : 12 December 2007 APPLICANT Mr R Zikmann, barrister Solicitors LEGAL REPRESENTATIVES: Segal & Associates RESPONDENT Mr S Patterson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 12 December 2007 10968 of 2007 Andrew Cusack & Kerry Morrison v Waverley Council JUDGMENT 1 This is an appeal against the refusal by Waverley Council (the council) of a development application under the Environmental Planning and Assessment Act 1979 (724/2006) to replace an existing retractable awning with a 3.51 m by 4.95 m covered vergola at 1/24-26 Isabella Street Queens Park (the site). The site and its context 2 The site is located on the eastern side of Isabella Street between Birrell Street and Cuthbert Street. It is developed with a two-storey terrace over a ground level garage. The roof of the garage forms an elevated deck with edge planting and a retractable awning over the deck. The terrace is part of a group of four recent terraces. 3 Isabella Street is narrow and characterised by one and two-storey residential development of different styles. Adjoining the development to the north is a smash repair premises built to the street alignment. Planning framework 4 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent. The site is within the Blenheim Street conservation area. Under Waverley Development Control Plan 2006 (DCP 2006) the proposal is within the Queens Park Residential Character Study. Issues and evidence 5 The main issue in dispute between the parties was whether the proposal was inconsistent with the streetscape desired future character objectives 2.1 and 2.3 of the Queens Park Residential Character Study, which provide: 2.1 To reinforce existing street categories, through appropriate dwelling façade, building setback, fence and landscape gestures. 2.3 To maintain streetscape character through consistent building setback, particularly where a building is part of a row of identical buildings. 6 The relevant performance criteria, 2.1 and 2.3, provide: 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. 2.3 Building setbacks, terraces, balconies and roof lines are consistent within the defined street corridor and provide uniformity to a group of terraces, or mirror an attached semi. 7 The hearing was conducted as an On Site Hearing. Statements of evidence of Mr B Goldsmith, town planner, and Mr C Israel, heritage consultant, were tendered on behalf of the Applicant. These experts were not required for cross-examination. 8 Council did not call any expert evidence but provided the assessment report of Mr P Yachmennikov, which recommended approval of the application. The assessment report referred to the comments of Mr C Brady, council's heritage consultant, who stated "the proposed works will soften the hard edged character of this intrusive building". 9 Council's Development and Building Unit Committee (DBU) that comprises council officers, did not support the recommendation of the assessment report. It stated: The DBU visited the site and were of the opinion that the vergola on the front elevation is unacceptable. At present there are four terrace houses in the row with consistent front elevations including retractable awnings to each dwelling. The construction of a vergola on the front elevation will alter the symmetry and cohesion of the group of dwellings and the character of the conservation area and the Queens Park Character Study area and is therefore not supported. 10 Both Mr Goldsmith and Mr Israel did not agree with the conclusions of the DBU. Their evidence can be summarised as being: o the existing streetscape is not consistent and exhibits a diversity of character. o the site is part of a contemporary group of terraces which already has a retractable awning which will be replaced by the vergola. The vergola is compatible and complements the style of the existing terraces. o the proposal is visible only from limited vantage points and would not be visually dominant, intrusive or out of character with the locality. 11 Mr Israel agreed with the opinion of Mr Brady that the pergola would soften the appearance of the existing terraces. 12 Both Mr Goldsmith and Mr Israel did not consider that a row of contemporary terraces needed to be uniform in their architectural expression. Mr Goldsmith stated: The vergola is set back from the street whereas adjoining development to the north is built to the boundary. The vergola will be a complementary element to the architectural style of the terraces and not unsympathetic. In my opinion there is no reason to also suggest that this small row of modern infill dwellings has to remain the same or remain identical to each other in order to fit comfortably in the streetscape. ….. Again, these are modern interpretations of a terrace house form. Indeed, elevated courtyards over garages are not a traditional terrace form. There is nothing intrinsically wrong with permitting these terraces to be different to each other. In fact, the vergola will assist in breaking up the continuity of the current built form and create a difference and variety that is just as legitimate an urban design outcome as would be symmetry and balance. 13 Mr Israel held a similar opinion. He stated: In a heritage context enriched by the diversity of expression evident in Isabella Street, I would reject the notion that a contemporary group of terraces should be restrained by a concept of uniformity within its own grouping when that very uniformity detracts from the values of the Conservation Area. 14 Mr Patterson, on behalf of the council, submitted that these opinions did not address or meet the streetscape desired future character objectives or the performance criteria of DCP 2006. In Mr Patterson's submission the DCP required a degree of uniformity and consistency, particularly where a building is part of a row of identical buildings. Although he submitted that this did not require sameness but compatibility and referred to the principles of Senior Commissioner Roseth in Project Venture Developments v Pittwater Council (2005) NSWLEC 191. Findings 15 In applying these principles to the current application, I find that while the proposal will introduce an element that is different to the other terraces, this will not result in the development being incompatible with either the other terraces in the group or the streetscape. I acknowledge that the introduction of a structure onto the front façade of only one of a group of four terraces, whether contemporary or not, could have an adverse impact on the terrace group and the street. However, in the circumstances of this case, I have not reached this conclusion. 16 The vergola is replacing an existing retractable awning. While I do not accept that it is likely that the awning would remain open all the time, it would be open at different times to the awnings on the other terraces. As such, there is already a degree of inconsistency or lack of uniformity in the terraces. The retractable awning and the vergola are of the same size and height and will have a similar impact when viewed from the street, although the vergola is a permanent and more bulky structure. 17 The vergola will be visible in the street. However, when viewed from the south it will be against the façade of the panel beating shop and from the north this building will largely obscure the view of the vergola. While the vergola will be visible, I do not accept that it is an element that will dominate the appearance of the terrace or affect its relationship with the other terraces such as to render it incompatible. It is an element that is consistent with the architecture of the row of terraces and would be appropriate if it were repeated on the other terraces. 18 In the absence of any alternate evidence, I therefore accept the evidence of Mr Israel and Mr Goldsmith and consider that the proposal, while not the same as that of the other terraces, maintains compatibility with the group and the street, which is varied in its character. Therefore the proposal meets the desired future character objectives and performance criteria for streetscape in the Queens Park Residential Character Study in DCP 2006. Orders 19 The orders of the Court are: 1) The appeal is upheld. 2) The development application 724/2006 to replace an existing retractable awning with a covered pergola (Vergola) at 1/24-26 Isabella Street, Queens Park is approved subject to the conditions in Annexure "A". 3) The exhibits, except Exhibits 2 and D, may be returned. ___________________ Annelise Tuor Commissioner of the Court 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.