Land and Environment Court of New South Wales CITATION : Shulkin v Waverley Council [2008] NSWLEC 1255 APPLICANT Ronnie Shulkin PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10119 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- views, car parking, excavation, streetscape Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 (Amendment No 2) DATES OF HEARING: 21/04/2008 and 17/06/2008 DATE OF JUDGMENT: 26 June 2008 APPLICANT Ms S. Hill, solicitor of Susan Hill & Associates Lawyers Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr Staunton, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 26 June 2008 10119 of 2008 Ronnie Shulkin v Waverley Council JUDGMENT 1 This appeal relates to a development application for the demolition of an existing dwelling house and the construction and Torrens Title subdivision of two attached three-storey dwellings with basement car parking at 13 St Thomas Street, Bronte. 2 The site and the adjacent footpath are significantly elevated above the St Thomas Street carriageway and vehicular access/driveway to the basement is at grade off this carriageway. The carriageway and footpath are separated by a steep grassed bank that is to be penetrated by the driveway that will extend under the footpath into the basement that provides parking for four cars. The existing sandstone retaining wall along the site's frontage is to be retained (apart from a new pedestrian entrance). Part of the existing low sandstone retaining wall adjacent to the carriageway that supports the grassed bank is to be removed. Where the driveway penetrates the grassed bank new sandstone retaining walls are to be constructed. 3 The appeal was initially conducted as a conciliation conference under s 34 of the Land and Environment Court Act 1979, however, when no agreement was reached the conference was terminated with the parties subsequently consenting to my hearing and determination of the matter pursuant to s 34(4)(b). 4 The impacts of this vehicular entrance on the St Thomas Street streetscape form the basis, in the context of the applicable planning controls, of the council's only concerns in relation to the proposal. These are said to be such as to warrant refusal of the application. The applicant contends to the contrary. All other issues between the parties were resolved as part of the conciliation process. 5 At the hearing I heard from the owners of the neighbouring properties at 11 and 15 St Thomas Street who expressed concerns regarding the scale of the building (including car parking) loss of views and the extent of excavation. These matters were not raised as matters of concern to the council. Also when the conciliation conference began on-site I heard from other residents who expressed concerns including: loss of the existing characteristic 1930's dwelling house; the excessive height and bulk of the proposed house and its inappropriate appearance; overlooking and loss of privacy; impacts associated with construction and machinery; and the inappropriate driveway that will cut into the grassed bank. 6 As for the loss of views from 15 St Thomas Street the affected views are from side windows across the side/common boundary of the two properties. The view loss results from a corner of the proposed building that comfortably complies with relevantly applicable height and set back controls. Taking these matters into account together with the expansive quality views that will continue to be available from the main living areas, this impact is not unreasonable. 7 Regarding the size or scale of the building, again taking into account its compliance with the relevantly applicable controls and the fact that it is not a matter of concern to the council, this matter is not problematical. 8 The proposed basement requires a deep excavation into the site that mainly comprises a sand sub-stratum. The neighbours both expressed concerns as to the vulnerability of their brick homes that are constructed on sandstone block footings. The generic controls in Part 5 of the DCP include requirements that excavation should not exceed 3.0 m in depth, be no closer than 1 metre from side boundaries and not exceed 50% of, and be within, the building's footprint. The depth requirement is exceeded by several metres whereas the latter requirements are comfortably complied with. 9 Whilst I understand the residents' concerns and acknowledge the exceedence of the maximum depth requirement, I am satisfied that site excavation can take place in a manner that should not adversely impact upon the neighbouring dwelling houses. The conditions of consent require dilapidation reports and inspections and the works will be undertaken under the supervision of appropriately qualified engineers. 10 I thus do not accept that the resident's concerns comprise reasons sufficient to require the modification or refusal of the application. 11 In relation to the St Thomas Street streetscape issue, the planning controls contain a number of relevant provisions. Clause 10 (2) of Waverley Local Environmental Plan 1996 requires that consent shall not be granted unless that development meets one or more of the objectives of the zone, in this case the 2(a) Residential - Low Density zone. Objective (a) allows housing in the form of dwelling houses and the proposal complies with this, thus meeting the clause 10 (2) test. 12 Despite this objective (b) remains relevant and seeks to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses. There was no dispute that the site is situated in a locality predominantly characterised by dwelling houses. 13 Part D1 of Waverley Development Control Plan 2006 (Amendment No 2) deals with dwelling house and dual occupancy development. The aims of this part include the need to ensure that new dwelling houses do not significantly detract from the amenity of the dwellings and to maintain and enhance the built form and residential characteristics exhibited in (this instance) the Bronte Residential Character Study Area. The study contains desired future objectives and design guidelines to ensure that the unique character of the area is maintained or enhanced. 14 The Character Study is particularised in Part 4.0 of the DCP. It describes three distinctive characters or precincts including the Bronte Terraces that include St Thomas Street. The Bronte Terraces are described as having: Steep slopes with wide, panoramic views of the Pacific Ocean and surrounding areas. The landform has given rise to curvilinear streets with stone wall terraces, one of the strongest landscape features in the study area (refer to Figure 44). This area includes Gardyne Street, Pacific Street, the eastern end of Hewlett Street, Macpherson Street, and other areas of similar character. The building typology is predominantly two-storey, detached dwellings. There are a number of residential flat buildings and various other building forms. 15 Figure 44 shows: split-level streets with grassy verges and sandstone retaining walls as found in Gardyne Street, [that] are characteristic of the Bronte Terraces. 16 Part 4.3 describes the existing character elements of the Bronte Terraces as being highlighted by its landform, wide panoramic and ocean views and curvilinear streets. Particular features include stone retaining walls, exposed bedrock, and landscaping on sloping ground that are important elements of the streetscape. Parts 4.3 (iii) and (v) note that: The landform and absence of a rear lane makes car access problematic for most of the upper Bronte Terrace sites. Recent developments have introduced excavation and cuttings into the existing stone walls to accommodate garages adjacent to the street. Unsympathetic design solutions often degrade the original Street character creating a " fortress wall" effect along the street. This trend is not encouraged. 17 The associated desired future character objectives include the need to emphasise the natural topography and to retain and emphasise existing landscape features such as sloping ground, sandstone or bedrock walls and mature plants, so as to reinforce the site and street's distinctive character. Existing sandstone retaining walls fences and garages are to be protected so as to reinforce the street's distinctive character. The associated performance criteria require, where excavation is inevitable, the minimisation of the loss of sloping landscaping and sandstone retaining walls. Also where a sandstone wall provides a significant contribution to the streetscape, works that significantly modify the wall are not supported. 18 The objectives in Part 5.2 provide that dwelling houses should add to but not detract from the existing streetscape and character of the area. Part 5.7 deals with vehicular access and parking and the relevant objective is: To ensure that the design and size of off-street car parking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape. 19 It is also here noted: that if the proposed off-street parking facilities or associated works will unreasonably detract from the appearance of the … streetscape or landscape… a zero parking requirement may be imposed. The characteristics of some sites may mean that car parking should not be provided on site. 20 Car parking is also provided for in Part 3.2 and a minimum of zero and a maximum of two car parking spaces are required for each dwelling. As indicated above two car spaces are provided for each of the two dwelling houses. 21 The design considerations in Part 5 of the DCP that deal with urban design and streetscape include the need to maintain a continuity of streetscapes and streetscape elements. Vehicular crossings for dwelling houses are to be of single vehicle width only (as is provided by this proposal). Also: Where there is no car parking on an original lot and off-street parking is not characteristic, vehicular access from the street is not permitted. 22 As explained by Mr Kennan there is currently no off-street parking on the west side of this section of St Thomas Street (between Albert Street and the kink in St Thomas Street), hence the provision of off-street parking for this development should, in accordance with the DCP, not be permitted. Mr Moody disagreed explaining that, taking into account not only the east side of St Thomas Street but also the Bronte Terraces area generally where off-street parking is common, off-street parking is clearly characteristic. 23 The absence of off-street parking on the west side of St Thomas Street in the vicinity of the site (other than the consent for a garage in the road reserve at 11 St Thomas Street - adjoining to the north) cannot be disputed. If this were the relevant criterion for determining whether off-street parking is characteristic then (and notwithstanding that the DCP cannot and does not prohibit off-street parking) this would indicate that the proposal might not comply with Part 5 of the DCP. However, I believe the approach taken by Mr Moody to be correct, whereby the off-street parking characteristics of St Thomas Street generally and the Bronte Terraces Area should be taken into account. On this basis and notwithstanding that there is presently no car parking on or vehicular access onto the site, the impacts associated with the provision of car parking as proposed should be dealt with on their own merits and in the light of the other planning controls. 24 Whilst there is no mandatory requirement to provide any off-street car parking for this development I agree with Mr Moody that it is entirely reasonable for a development of this kind to have off-street parking. Also it makes no difference how many car spaces are provided because this does not affect the driveway entrance to the basement. Hence it is the impacts of the (single vehicle width) driveway entrance itself that is the issue not the car parking (or the size of the basement), which, once the development is completed, will not be apparent. 25 In this regard Mr Kennan was concerned that a significant excavation is required in the road reserve together with the removal of part of the existing sandstone retaining wall and as a consequence the proposal will not enhance the predominant street character of St Thomas Street, contrary to the requirements of the DCP. Mr Moody disagreed, noting that the dwarf retaining wall at the street level is only a very small element in the street. Of particular importance is the fact that the proposed retaining walls for the driveway will provide a substantial increase in the level of sandstone evident from the public domain as well as the fact that the sandstone boundary wall is to be substantially retained. These matters are responsive to the requirements of the DCP. 26 There have been a number of approvals for openings in sandstone walls in this locality and whilst I give some weight to these, the impact of the proposal on the streetscape of St Thomas Street should be largely dealt with on its own merits. Relevantly the characteristics of St Thomas Street comprise sandstone walls, the grassy bank and the footpath elevated above the carriageway. Whilst the grassy bank is important it is the sandstone walls that seem to be the strongest characteristic landscape feature that the DCP seeks to preserve. 27 I am satisfied that this is not an unsympathetic design solution that could degrade the character of St Thomas Street by creating a fortress wall effect. Notwithstanding that the recessed garage door will be apparent from some viewing positions, taking into account that garages on street frontages are not uncharacteristic in the Bronte Terraces Area, I do not find this to be problematical. I am also satisfied that the proposed design will allow the natural topography in the form of the grassed slope to remain apparent even though some of it will be lost and importantly it will minimise the loss of some of the lower sandstone retaining wall by the provision of its own. In the circumstances I agree with Mr Moody that the proposed access will not unreasonably detract from the appearance of the streetscape. 28 I have given little weight to the approval for a sandstone garage for the adjoining property to the north, that is to be constructed within the road reserve itself because the manner in which it projects out from the grassy slope would appear to be less than desirable in the streetscape. It nevertheless it represents a precedent in terms of the provision of private parking for residential development on this side of St Thomas Street. This approval might be seen to reinforce that precedent but I see no problem with this. 29 If this particular approval is seen as a precedent for the provision of this kind of access to off-street parking by providing a break in the lower retaining wall, because I find it to be a satisfactory response to the planning controls, this cannot be an inappropriate outcome. Of course any other application for this form of site access would need to be considered on its own merits. There was no evidence available to indicate how the west side of St Thomas Street might look if additional accesses to off-street parking were to be provided, it is plain that the appearance of the street would change. Despite this the grassy bank would, as it should, still be apparent in the context of sandstone walls. In the context of the planning controls this need not be an inappropriate outcome. 30 For the above reasons I have decided that the appeal should be upheld and conditional development consent granted. ___________________ 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. 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