Land and Environment Court New South Wales Medium Neutral Citation: Addglow v Waverley Council [2011] NSWLEC 1166 Hearing dates: 8 April 2011 Decision date: 11 April 2011 Jurisdiction: Class 1 Before: Dixon C Decision: 1.The appeal is upheld. 2.Development consent is granted to DA 724/2010 for basement garages to approved dual occupancy DA 415/2010 at 12 Lancaster Road, Dover Heights subject to the conditions in Annexure A. 3.The exhibits are returned. Catchwords: HERITAGE - garage, impact of the development on the heritage significance of the sandstone retaining wall, streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 Roads Act 1993 Cases Cited: Segal v Waverley Council [2005] NSWCA 310 Zhang V Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Addglow (Applicant) Waverley Council (Respondent) Representation: Ms Hill, Solicitor (Applicant) Mr Patterson, Solicitor (Respondent) Susan Hill & Associates Lawyers Pty Ltd (Applicant) Wilshire Webb Staunton Beattie Solicitors (Respondent) File Number(s): 10065 of 2011 Ex TEMPORE JUDGMENT Summary 1This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against Waverley Council's deemed refusal of development application (DA 724/2010) for a garage and access stair into a basement level beneath an approved development at 12 Lancaster Road, Dover Heights. It also includes an application under s 138 of the Roads Act 1993 and s 39(2) of the Land and Environment Court Act 1979 ( the Court Act) for works within the Road Reserve . 2The matter was set down for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement. Pursuant to s 34AA (2)(b) of the Court Act, the conciliation conference was terminated and a hearing was held. The parties consented to evidence heard on site and the site view forming part of the evidence in the proceedings. 3The central issue is whether the impact of the development on the heritage significance of the retaining wall is acceptable. The access to the garage is through the Road Reserve and an existing sandstone retaining wall. Such access requires a 5.22 m wide opening in the existing 2.2 m high sandstone retaining wall by excavating the nature reserve of Lancaster Road. The excavated area would have a width of between 3.6 m and 5.22m and a depth of up to 2.4 m. It is also necessary to provide a pedestrian bridge above part of the excavated area, adjoining the front property boundary to allow for a continuation of the existing footpath in this position. The plans show a 450 mm wall to be erected bordering the edge of the top of the cutting topped by a timber railing to from a safety fence. A security grill is to be provided on the property boundary of the access driveway. 4Each party relied on expert evidence. Ms Gordon (planner) and Mr Tropman (heritage expert) gave evidence for the council, and, Mr Moody (planner) and Mr Davies (heritage expert) gave evidence on behalf of the applicant. 5Based on the view of the site and the oral and written evidence I am satisfied that the development is acceptable, on a merit assessment under s 79(c) of the Act subject to the agreed conditions. Background 6I rely on the statement of facts and contentions filed by the council on 14 March 2010 and the applicant's statement in response dated 4 April 2011. 7The site is located on the northern side of Lancaster Road between the intersections of Old South Head Road and Peel Street and is comprised of 12 Lancaster Road and Lancaster Road Reserve. The land is zoned Residential 2(a) - Low Density under The Waverley Local Environmental Plan 1996 (LEP) and the Road Reserve is unzoned and the proposed development is permissible with consent. The Waverley Development Control Plan 2010 (DCP) Parts C3, D1 and G and Part 1 apply; however, the site does not contain any heritage items under the LEP and is not in a conservation area. 8The site has a frontage of 15.24m to Lancaster Road and slopes 500mm from the northern boundary to the southern boundary with Lancaster Road. It has a total site area of 539.60sq m. 9The Road Reserve contains a constructed carriageway and the northern side of the Road Reserve in the vicinity of the site contains a substantial sandstone retaining wall supporting the nature reserve, which is located over 2m above the base of the retaining wall. There are two footpaths at the front of the site one at the road level adjoining the carriageway and the other adjoining the site boundary at an elevated level. The two footpaths are connected by a series of stairs with the nearest stairs being located adjoining the proposed opening in the wall. 10Surrounding the site are one and two storey dwelling houses and older style residential flat buildings. The southern side of Lancaster Road is characterised by the provision of garage structures fronting Lancaster Road. The northern side of the Road is a largely intact sandstone retaining wall although there is one garage opening at it western end. Properties fronting the retaining wall are characterised by no onsite parking, other than a single property to the western end of the retaining wall. 11On 23 November 2010 council approved DA 415/2010 for the demolition of the existing and subdivision approval of the site into two lots and the construction of a two-storey semi detached dwelling on each lot with a pool each. No approval was granted for the proposed excavation for two-tandem double garages vehicular access entry through the sandstone wall car turntable and associated structures. Condition 4 required the deletion of the basement level structural works. 12The council has raised several contentions including: the impact of the proposed development on the streetscape, the heritage significance of the sandstone retaining wall, the unacceptable precedent effect of an approval of the application resulting in the further degradation of the retaining wall and inconsistencies with the approved works in DA 415/2010. 13The heritage experts agree that the retaining walls were built about 1917 and that Lancaster Road provided access to Military Road and Dover Heights in the early twentieth century and that they are a well-preserved example of municipal infrastructure work of that period. However, they have different opinions about the significance of the retaining walls. 14Mr Tropman considers the walls are significant not only for historical reasons but also because of their aesthetic and representative qualities. He assesses that they meet the threshold for listing as a local heritage item, (p 2 of the joint report exhibit A). Despite his assessment however, the walls are not included in council's community based heritage study undertaken in 2007, which was adopted in 2010. 15They have not been identified as a Heritage item or "landscape Item and Site "under the council's LEP. Relevantly, council's heritage architect and urban planning adviser Mr Brady has raised no objection to the proposed basement garage and opening subject to the agreed conditions. He did not consider the retaining walls to be of any particular significance and did not object to the new entrance through the retaining walls provided that, " the existing stone retaining walls incorporate return walls in matching stonework including the height for the safety fence " (exhibit 1 p 59). His assessment is consistent with Mr Davies' assessment that the retaining walls do not meet the threshold of significance for heritage listing. Additionally, council's assessing officer also recommended approval of the application for the basement garage provided ".... that the opening is finished with high quality materials which are sympathetic to the existing sandstone, the facilities will not detract from the streetscape" . 16I accept the evidence of Mr Brady and the assessing officer and that of Mr Davies that the proposed conditions ensure that the development achieves an acceptable outcome in the streetscape. 17There is no reliable evidence before me about any reassessment of the heritage significance of the retaining walls by council; other than the memorandum on the council file prepared by a graduate landscape architect recommending such action. In the circumstances I give little weight to that evidence. 18The view confirmed the oral and written evidence, that the sandstone retaining walls are constructed at the western end of Lancaster Road on both the northern and southern sides of the roadway. They are well-constructed, evenly coursed rock face sandstone retaining walls and stairs with tapered rock face sandstone capping. The northern wall is over two metres high, gradually tapering to the road level. The southern wall is less than one metre in height and tapers to the road level. It is apparent that the southern wall has been substantially modified in recent years. I accept the experts' assessment that they are of low to medium integrity and intactness. 19At the view I observed several garages accessed through the remnant retaining wall on the southern side of Lancaster Road although there is only one garage driveway through the retaining wall on the northern side of Lancaster Street. Despite that I accept the evidence of Mr Davies and Mr Moody that the proposed development - which requires an opening into the retaining wall and nature strip at its highest point of 2 m and a bridge to allow upper public footpath access over the opening and a 450 mm safety fence above the garage door - is acceptable development because the proposed treatment and materials will ensure that the development integrates well with the existing streetscape. 20I accept the evidence of Mr Moody and Mr Tropman that the wall should be raked, the safety fence be of municipal character, perhaps timber and that any material used can be distinguished from the original sandstone and not be misinterpreted as part of the original design. I accept Ms Gordon's recommendations of appropriate materials as discussed in the joint report of the planners (exhibit 3). 21I do not accept Mr Tropman and Ms Gordon evidence that the excavation will result in a large and visually dominant hole in the nature strip, which is significantly different to the existing break in the wall and from the garages on the opposite side of the street. I prefer the evidence of Mr Davies that it is not a hole as such but a detailed entranceway into a wall. I accept Mr Moody's assessment that the streetscape is undistinguished, and mindful of council's DCP controls in respect of parking, (DCP 2010 part D1 under 5.7) which is a focal point of my assessment, I do not believe that removal of this part of the retaining wall to facilitate a splayed driveway entry of 5.2m reducing to 3.6 m at the garage door unreasonably detracts from the appearance and quality of the existing streetscape. A zero parking requirement is not justified on the evidence or the facts of this case. While there was no car parking on the original lot the council has approved a subdivision of the site and the construction of two dual occupancies each with four bedrooms. There is a need for onsite parking in the street. This was a repeated concern identified by the local residents who raise no objections to this proposal but offered submissions in support at the time of notification. 22Onsite parking for four cars will ensure a greater amenity for the residents of the dual occupancy and alleviate the existing competition for street parking. Although I note one on-street car space will be lost to facilitate the driveway access. The site overall will provide four additional garages for the occupants. The provision of two car spaces complies with the council's controls and there is no reasonable basis for imposing a zero parking requirement for this development. Based on the facts of the case the opening into the existing sandstone wall for the purpose of car accommodation for the approved residential development can be justified although generally such walls should not be removed under the DCP. 23The council is concerned that an approval of this application will set an unacceptable precedent for the adjoining properties. However, each development application must be assessed under s 79C of the Act on its merits. In the circumstances of this case there can be no precedent because of the particular features of this site and this application. The subdivided site will have a combined frontage of 15 m and the access to the driveway is in the centre of the site with proposed easements for support. The street frontage is much wider than other frontages on that side of Lancaster Road. Both Mr Moody and Mr Davies gave evidence that they supported this particular proposal because of the width of the frontage of the site and the particular design before the Court. Given those facts and the need for each case to be considered having regard to its individual circumstances there can be no precedent from the Court's decision in this matter: Segal v Waverley Council 2005 NSWCA 310 at paras 58 to 60 and 96. 24As I noted at the outset, this application requires an approval under the Roads Act for works on the Road Reserve. The Court is the consent authority for the purposes of the Roads Act in this appeal under s39 (2) of the Act. After a consideration of the law and the facts I also grant consent for any necessary works on the Road Reserve to facilitate the approved development. Because of the interrelationship between this application and the approved dual occupancy it is necessary to amend the earlier consent to allow access from the basement to the dual occupancy. The conditions of consent incorporate the requisite amendment of the earlier DA pursuant to s 80A(1)(d) of the Environmental Planning and Assessment Act . 25In conclusion I am satisfied on the evidence that the development is not inconsistent with the controls and strategies in Part D1 5.7 and Objective (a) of 5.7.3 of the DCP. While the DCP is a focal point of my consideration of this application I am not required to adopt it uncritically if I am otherwise satisfied on a proper assessment under s79C of the Act that the development is acceptable: Zhang V Canterbury City Council [2001] NSWCA 167. Based on the evidence I have decided that the development will not unreasonably detract from the appearance and quality of the streetscape having regard to the driveway's location and the proposed materials and treatments and the street planting proposed. Accordingly, the Court makes the following orders: 1.The appeal is upheld. 2.Development consent is granted to DA 724/2010 for basement garages to approved dual occupancy DA 415/ 2010 at 12 Lancaster Road, Dover Heights subject to the conditions in Annexure A. 3.The exhibits are returned. Susan Dixon Commissioner of the Court ANNEXURE A 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. Decision last updated: 28 June 2011