Norman v Waverley Council [2010] NSWLEC 1200

Land and Environment Court of New South Wales

CITATION : Norman v Waverley Council [2010] NSWLEC 1200

APPLICANT John and Tracy Norman PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10334 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing garage and the construction of a new double garage with studio above - filling of rear yard - impact on character/streetscape

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

DATES OF HEARING: 23 July 2010

DATE OF JUDGMENT: 29 July 2010

APPLICANT Mr M Wright, barrister SOLICITORS Sattler & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms C Morton, solicitor SOLICITORS Sparke Helmore Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

29 July 2010

10334 of 2010 John and Tracy Norman v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application DA 211/2009 by Waverley Council (the council) for the demolition of an existing garage and the construction of a new double garage with studio above at 181 Newland Street, Queens Park (the site). 2 The proceedings were conducted as an On Site Hearing and the contentions raised by the council relate to unacceptable visual impact of the proposed garage and street fencing on the streetscape and character of the area and the unacceptable impact on the amenity of adjoining residential properties. The site 3 The site is Lot 22 in DP 4600. It is rectangular in shape with an eastern frontage to Newland Street of 9.145 m, a similar frontage to the west to Alt Lane, a southern boundary of 42.215 m to Newland Lane and a similar northern boundary to the adjoining property at 179 Newland Street. The site has an area of 386 sq m and has a dwelling located towards the Newland Street frontage and an existing single garage some 6 m from the Alt Avenue frontage. 4 The area is predominantly residential in character. Most dwellings are located towards the principle street frontage and have rear lane access. The lanes are characterised by garage doors that occupy most of the lane frontage. Some properties have studios or similar development above the garages. The proposal 5 The garage is to be built to the rear boundary line and for distance of 6 m along the northern and southern boundaries. The proposed studio is also to be built to the northern and rear boundary to distance of around 6 m and is to contain a toilet. Access to the studio is obtained via stairs on the southern side of the studio that lead to the lawn area of the dwelling. 6 The proposal also seeks to raise the existing rear yard ground level by around 0.5 m to 0.6 m and provide new boundary fencing along the southern and part of the northern boundary. Relevant planning controls 7 The site is zoned Residential 2(a) - Low Density under the Waverley Local Environmental Plan 1996 (LEP 1996). Clause 2 provides general aims of the plan. The relevant general aim is: (c) to improve the amenity, safety and environmental quality of the built and natural environment. 8 Clause 3 provides specific aims with cl 3(7) providing aims for housing. The relevant aim is: (f) to improve the amenity of residential areas, 9 The relevant zone objective is: b) to maintain and improve the amenity and the existing characteristics of localities predominantly characterised by dwelling houses. 10 Clause 10(2) provides that consent shall not be granted unless the proposed development meets one more of the objectives of the zone although the council did not raise any contentions in relation to this sub-clause. 11 Waverley Development Control Plan 2006 (Amendment 4) (DCP 2006) applies. Part D1 applies to dwelling houses and dual occupancy developments. Section 1.2 provides aims. The relevant aims are: (e) to ensure that alterations and additions to existing dwellings and dual occupancies are sympathetic in form and character with other dwellings in their vicinity; (h) to maintain and enhance the distinct built form and unique residential characteristics that are exhibited in the… Queen's Park Residential Character Study Area; 12 Section 3.0 provides details on the Queens Park Residential Character Study. Section 3.2 6 addresses Residential Character - Streetscapes. Rear access lanes are identified as one of the three distinct types of streetscape character in the study area where it states: The narrow corridor like access lanes are dominated by garages doors, high fences and walls, landscape screening and a variety of building setbacks. 13 Section 3.3 provides specific objectives for the study area. This section, in part, addresses rear lanes. The relevant objective is: 2.5 To progressively improve the existing cluttered character of rear access lanes . 14 The relevant performance criteria in this section are: 2.9 In rear access lanes, a single car width garage door is encouraged where it contributes to the coherency of the street. 2.10 Where rear lanes are characterised by varied building forms and setbacks, vegetation and screen plantings are to be used to enhance the streetscape . 15 Section 5.5, Part D1 provides requirements for fences. The relevant objectives are: (a) To avoid visual impacts from the creation of high blank walls to the street by encouraging fencing styles that contribute positively to the streetscape, . (d) To ensure that side and rear fences are not of excessive heights. 16 The section states that the objectives are not achieved unless: Side and rear boundary fences do not exceed 1.8 m above the existing ground level of adjoining properties 17 Section 5.9, Part D1 provides requirements for Laneway Development and Ancillary Buildings. The relevant objective is: (c) To ensure the laneway development is compatible with the streetscapes of the laneway and primary street. 18 The relevant controls in s 5.9.1 for laneway development are that laneway development: - be designed with simple built forms, built at or very close to the land alignment and should not provide a strong visual element when viewed from the primary street frontage, - should incorporate a pitched roof, and - should incorporate an area of deep soil planting (in the form of a 75l native tree or bush) located at the rear lane. 19 The relevant controls in s 5.9.2 for laneway development are that laneway development: - have external wall heights not exceeding 3.6 m and a maximum height to the roof ridge of 5.6 m, - have external walls that include gable roof ends to a maximum ridge height of 5.6 m where the impact on neighbours is considered acceptable, - not incorporate decks or balconies, - contain stairs within the building, and - not be used as a separate occupancy, nor contain bathrooms or kitchen facilities.