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. The garage/studio The evidence 20 Town planners, Mr Kerry Nash provided evidence for the applicant and Mr Neil Kennan provided evidence for the council. Two local residents provided evidence on site and supported the contentions raised by the council. 21 Mr Nash states that the planning outcomes envisaged by zone objective (b) in LEP 1996 and the aim (h) in s 1.2 of DCP 2006 are satisfied as there are no privacy impacts or overshadowing impacts on adjoining properties. Mr Nash states that the streetscape associated with the corner lot in the immediate visual catchment is characterised by a diversity of the built form and height of structures. Mr Nash relies on the contemporary design of the dual occupancy development at 38 Queens Park Road, the two-storey garage/studio at 28 Queens Park Road and the approval for a two-storey garage/studio at 32 Queens Park Road directly opposite the site to support his position. In his opinion, the proposed flat roof structure of the proposal will be consistent with the existing or approved garage structures at 28, 32, and 38 Queens Park Road. He concludes that in terms of character and scale of the built form of structures at the rear of dwellings in the vicinity of the proposed development, the proposal will maintain and enhance the existing built form and make a positive contribution to the streetscape. 22 Mr Kennan states that the improvement and maintenance of the amenity of the built environment is dictated to a large degree by the controls which the council has prepared to regulate the built environment, but with some variations where considered warranted. In this context, Mr Kennan states that the proposed development is significantly non-compliant in that the proposal: - is a strong element when viewed from both Newland Street and Alt Street, - does not incorporate a pitched roof, - does not include an area of deep soil planting, - has a maximum wall height of 5.4 m, in excess of the 3.6 m requirement, and - has an overall height of 5.6 m for the skillion roof, rather than to the ridge of a pitched roof. 23 The result is a built form significantly more bulky when viewed from Newland Street, Newland Lane, Alt Street and Alt Lane compared to what is envisaged by the councils planning controls. Findings 24 In considering the visual impact of the proposed garage on the streetscape, a site inspection was undertaken that included the immediate vicinity of the site, that both Mr Nash and Mr Kennan agreed was the visual catchment, and the area to the east and on the opposite side of Queens Park Road. The site view concentrated on the existing laneways and the different forms of development that fronted the laneways. The clear impression from the site view was that the laneways in the vicinity the site and in the wider area, have a consistent character; made up of garages close to or on the alignment of the laneways with some garages having lofts or studios above the garages. There was however a wide range of age and form of the garages with many being constructed a considerable time ago and some more recent developments. 25 Mr Nash and Mr Kennan essentially disagreed on the extent to which the Court should have regard to those properties identified by Mr Nash in the vicinity of the site; being 28, 32, and 38 Queens Park Road. Mr Nash relied on these properties whereas Mr Kennan relied on the more recent approvals of laneway development in the broader area that in his opinion, was more consistent with the council's planning controls. 26 In balancing these two opposing views, I am more inclined to accept the conclusions of Mr Kennan. Of the sites identified by Mr Nash, 38 Queens Park Road is a recent contemporary dual occupancy design that provides vehicular access from Newland Lane. In my view, this development does not raise the same issues as the proposal in terms of visual impact. The property at 32 Queens Park Road is an approval for alterations and additions to existing garages (as part of the redevelopment of the property) that has a frontage to Newland Lane. The approved plans indicate a form of development not inconsistent with the proposal although Mr Kennan pointed out that the two-storey portion of the proposed alterations and additions was located centrally on the particularly wide lot and that this approval did not represent the same issues as the proposed development. The property at 28 Queens Park Road has a two-storey garage/studio with access off Newland Lane. The two-storey part of the garage/studio has a bland and uninteresting facade and I have little trouble in concluding that it is a form of development that should not be used as a benchmark for any future development in the area. 27 Contrary to the approach of Mr Nash, there is no reason why recent approvals of the type proposed in this application should not be taken into account even though it may not be within the visual catchment of the site. Section 5.9, Part D1 of DCP 2006 applies beyond the visual catchment of the site and the general, but not exclusive, observation on the site inspection was that most recent developments for garages and loft/studios were generally consistent with the controls in s 5.9.2 for laneway development that require a pitched roof, an external wall height not exceeding 3.6 m and a maximum height to the roof ridge of 5.6 m. 28 I do not accept that the small number of developments that were approved and appeared to be contrary to these requirements can reasonably be used to support the proposed development, given the specific requirements in DCP 2006 and the general compliance with these requirements in the area. 29 I find that the proposed development is inconsistent with objective (c) of Section 5.9, Part D1 that seeks to ensure the laneway development is compatible with the streetscape of the laneway because of the non-compliance with the controls in s 5.9.2 for laneway development relating to roof design, external wall height and maximum height to the roof ridge. 30 The requirement for landscaping in s 3.3 is not a matter that, in my view, would warrant the refusal of the development application. Even though s 5.9.1 requires an area of deep soil planting, there was a consistent absence of any planting in the laneways viewed on the site inspection and for this reason it would be unreasonable to enforce this requirement. Fencing The evidence 31 Mr Nash states that the proposal will result in the level of the rear yard being increased by 560 mm adjoining the rear of the residence at 181 Newland Street and between 570 and 580 mm adjoining the side boundary of 179 Newland Street. The increase in the level of the rear yard and reinstatement of the existing 1.8 m high timber fence along part of the southern boundary to Newland Lane will not result in any adverse amenity impacts. Similarly, and in terms of streetscape and visual impact; the increase in height will have no unacceptable impacts when viewed from Newland Street. 32 Mr Kennan states that the existing fence along Newland Lane is already above 1.8 m control and the applicant has not provided any reasonable justification for the filling of the rear yard, which will result in a substantial structure at the Newland Lane frontage. Mr Kennan states that the proposed garage and studio structure could be redesigned and built on the site without the need to fill the rear yard area. This would avoid the visual impact that would be created by the proposed fence which, Mr Kennan states is excessive in its height and will create a blank wall in Newland Lane which would not contribute positively to the streetscape. Findings 33 Section 5.5, Part D1 provides that side and rear boundary fences should not exceed 1.8 m above the existing ground level of adjoining properties. Currently, a 1.8 m high lapped and capped fence sits on a variable height retaining wall at the Newland Lane frontage. The proposed filling will see this fence raised between 500 mm and 600mm. There is some merit in the conclusions of Mr Kennan that raising the fence will create a relatively high wall in Newland Lane although I am satisfied that if this was the only issue in dispute that a compromise could be found that would allow some filling of the site while minimising the effect of the increased fence height on the streetscape. Orders 34 The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA 211/2009 for the demolition of an existing garage and the construction of a new double garage with studio above at 181 Newland Street, Queens Park is refused. 3. The exhibits are returned. _____________ G T Brown 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.