Land and Environment Court New South Wales Medium Neutral Citation: Carroll v Lane Cove Council [2011] NSWLEC 1223 Hearing dates: 2 and 3 May 2011 Decision date: 03 August 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the property known as 24 Wallace Street, Greenwich is upheld. (2)The development application submitted to Lane Cove Council, and as amended and shown in exhibit M, is determined by the granting of consent, subject to the conditions in annexure A. (3)The exhibits are returned to the parties with the exception of C, M, N, O and exhibit 9. Catchwords: APPEAL - Demolition and Erection of dwelling house; impact on heritage conservation area and adjoining heritage items, impact on streetscape, impact on views and privacy; setback from street; height of building and whether trafficable carport roof is appropriate in streetscape and its precedential effect Legislation Cited: Lane Cove Local Environmental Plan 2009 Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 (3 August 2009) Goldin and Another v Minister for Transport [2002] NSWLEC 75 Pafburn v North Sydney Council [2005] NSWLEC 444 (16 August 2005) Super Studio v Waverley [2004] NSWLEC 91 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Greg and Collette Carroll (Applicant) Lane Cove Council (Respondent) Representation: Counsel Mr G McKee, Solicitor (Applicant) Mr S Griffiths, Solicitor (Respondent) Solicitors McKees Legal Solutions (Applicant) Pikes Lawyers (Respondent) File Number(s): 11008 of 2010 Judgment 1The applicant in these proceedings is seeking to construct a part two and part three-storey dwelling house on and the land known as 24 Wallace Street Greenwich. 2The appeal lodged with the Court was against the deemed refusal of the Council. However, leave was subsequently granted to change it as an appeal against conditions that attached to the consent granted by the council. In essence, the conditions appealed are in respect of a reduction in the ridge height of 600 mm, such that the ridge RL was not to exceed 39.231. That is condition 2(a). The other condition that the applicant is appealing is condition 2(b) that: the trafficable roof-terrace over the carport must be deleted and replaced with a non-trafficable roof. Site and environs 3The subject site is shown in the aerial photograph at figure 1. The western boundary of the site adjoins the footpath of the unformed portion of Upper Serpentine Road and at this point the land falls steeply away to the Greenwich Reserve on the foreshores of the Lane Cove River. The site rises gradually from the front boundary of Wallace Street to the rear boundary by approximately 3 m. 4Wallace Street is a no through road, finishing where there is a dramatic drop in topography and the subject site is the last one on the southern side of the street. The site is within the Greenwich Heritage Conservation Area (HCA). 5Currently on the site there is an existing two-storey dwelling with an attached double carport at the front of the premises that has a trafficable roof area and this together with the dwelling house enjoys wide panoramic views of the Lane Cove River. 6The subject site shares common boundaries with neighbouring properties of 22 Wallace Street to the east and 39 and 41 George Street, Greenwich to the south and southwest of the site. The dwellings on 22 Wallace Street and 41 George Street are heritage items, listed under the Lane Cove Local Environmental Plan 2009. Evidence 7The Court met on site with the parties and undertook a site inspection of the neighbouring properties and area. The Court heard from the owner of 20 Wallace Street and she is concerned about the bulk and scale of the proposed dwelling house in the context of the streetscape and the Greenwich Conservation Area. She expressed concern that the dwelling is effectively three storeys with a trafficable deck, not sympathetic to the topography and heritage of the area. Concern was also expressed about the impact of the proposed dwelling on views enjoyed by neighbouring properties. 8The owners of number 22, the heritage item, advised the Court that they were surprised that Council approved the dwelling, as it presents as a three-storey building and 10 m in height. In their opinion, the proposed dwelling is unsympathetic and hostile to the heritage conservation area and its values. They also expressed concern about the loss of light and privacy and amenity impact on their heritage-listed dwelling. They expressed concern that the council had disregarded the heritage issues and that the proposed three-storey dwelling infringes the streetscape, with a reduced setback and a trafficable roof at the front of the dwelling. They are concerned that the bulky three-storey dwelling presents as an inappropriate and unsympathetic design in the streetscape and does not recognise the topography. 9On behalf of the applicant, expert evidence was provided by Mr Warren Long, consultant town planner, and Mr Robert Staas, consultant heritage architect. For the respondent council, evidence was given by Mr Anthony Betros, consultant town planner, and Mr Robert Moore, consultant heritage architect. Contentions 10The respondent council contends that the proposed trafficable terrace over the carport should not be approved because of the impacts on the streetscape and the heritage conservation area. Council also contends that this element has adverse impacts on the privacy and views of the dwellings immediately to the east of the subject site and the trafficable terrace does not comply with the objectives of the R2 zone in the LEP, (in particular objectives 3, 4 and 5). Council also contends that the deck is out of character and contrary to the objectives of the heritage conservation area and adjoining heritage item and its landscaped setting. The respondent has also particularised the clauses and provisions where it considers the proposal is non-compliant. 11The second contention the council raises is that the building should be lowered by 600 mm, not the 300 mm proposed by the applicant, because of the impacts on the streetscape and the impact on number 22, the heritage item. The provisions of the Lane Cove LEP and DCP are also particularised. 12In the statement of facts and contentions, the council also raised insufficient information. Statutory planning framework 13The subject site is in the Low Density Residential R2 Zone under the Lane Cove Local Environmental Plan 2009. The objectives of this zone are: * To provide for the housing needs of the community * To retain and where appropriate improve the existing residential amenity of a detached single family dwelling area * To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River * To ensure that landscaping is maintained and enhanced as a major element in the residential environment 14A dwelling house is permissible in the zone with consent. 15Clause 5.10 contains the heritage conservation provisions and the objectives are: (a)To conserve the environment and heritage of Lane Cove. (b)To conserve the heritage significance of heritage items and heritage conservation areas including associated fabric, settings and views. 16Consent is required for erecting a building on land that is within a heritage conservation area and subcl (4) requires the consent authority before granting consent to consider the effect of the proposed development on the heritage conservation area and subcl (5) requires a heritage impact statement to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage conservation area. 17For the height of buildings under cl 4.3, the subject site is within the area shown on the map, where buildings are not to exceed the maximum height of 9.5 m. The objectives are: (a)To minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties... (b)To maximise sunlight to the public domain. (c)To relate development to topography. 18The floorspace ratio map provides for an FSR 's and the objective is to ensure that the bulk and scale of development is compatible with the character of the locality. 19The Council adopted the Lane Cove Development Control Plan in February 2010 and part C provides guidelines for residential development and the objectives for dwelling houses and dual occupancies are: (1)Provide dwellings in landscaped lots. (2)Ensure new dwellings and alterations and additions are well designed and compatible with the surrounding context and enhance the streetscape within the area. (3)Achieve a reasonable level of amenity for both development sites and neighbouring dwellings. 20The objectives for streetscape include: (1)Achieve development of a scale and appearance which is in keeping with the predominant street and neighbourhood character. (2)Ensure the existing landscape character of the area is maintained and enhanced. (3)Ensure the existing topography of the site is reinforced by dwelling design. (4)Ensure that dwellings provide passive surveillance, resident interaction and address the street or adjacent public open space. (5)Ensure that garages, carports, and driveways do not dominate the dwelling or streetscape. 21The objectives for setbacks are to maintain the predominant street setback and to enhance and maintain vegetation corridors through landscaping within front and rear gardens and side boundaries. The provisions include: (a) The front setback of the building should be consistent with prevailing setback along the street. (c) the front setback is to be free of structures, other than carports,... (d) minor architectural design features such as awnings, sunshades, and balconies may project in the front setback at up to a maximum of 500 mm depth. These elements must not occupy the entire facade of the dwelling. 22The objectives for landscaped area are: (1)To provide privacy and amenity. (2)To retain and provide for significant vegetation ... (3)To conserve significant natural features. (4)To assist with on-site stormwater management. 23The provisions include that: " The landscaped area should be effectively distributed on the site to minimise the dominance of buildings, structures and paving when viewed from the street, public places and surrounding properties ." The provisions also require a minimum of 35% of the site to be landscaped area. 24The objectives for building design in s 1.6 are: (1) Ensure new dwellings and alterations and additions reinforce the typical bulk and scale of existing dwellings within the street and area. (3) Ensure elevations to the street and public domain are well proportioned and designed. (4) Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of use and amenity. 25The provisions in the DCP for height include: (a) The maximum wall height to the underside of eaves for any floor above existing ground level is 7 m to minimise the bulk and massing. (c) The maximum height of the parapet roof is to be 600 mm above the maximum wall height of the dwelling. (d) the maximum height for a pitched roof house is 9.5 m above ground level. (e) a maximum of 2 storeys is permissible at any point above ground level. 26The provisions for privacy in 1.7.2 include both visual and acoustic as follows: (a)Dwellings shall be designed and oriented so that windows, balconies and decks are not situated directly opposite windows of the habitable rooms of any adjoining dwellings unless privacy can be addressed. (b)Roof terraces and decks above the upper story are prohibited. (c)Elevated decks, terraces and balconies greater than 1 m above ground level to living areas are not to exceed a maximum depth of 3 m of usable area. Deeper decks may be considered if privacy to adjoining properties is addressed. 27The DCP provisions for car parking are contained in s 1.8 and carports are permitted within the front setback area where: (1)The carport has an open design and has minimal impact on the streetscape. (2)The carport does not have a trafficable roof. (3)Open security gates are permitted. (4)The carport posts are to be set back a minimum of 1 m from the street alignment. The objectives for car parking include to ensure that the design of car parking structures is consistent with the dwelling and has minimal impact on the streetscape. 28Other provisions for garages are that garages and carports facing the street should not exceed 50% of the lot width or 6 m, whichever is lesser. And other provisions include: (c) Garage doors are not to be installed on carports. (f) Materials for garage doors are to be sympathetic to the character of the street and the design of the dwelling and are to be solid. 29The subject site is within the Greenwich Heritage Conservation Area Locality 5, and this contains a number of overall objectives including: 7. The diversity of architectural forms and differentiation of layers of historical development should be recognised in the built fabric of the conservation area. 8. Modern architectural design of high standard is encouraged, provided it is compatible with the traditional forms of the conservation area and it can be demonstrated by the Heritage Impact Statement that positive impact will arise in relation to significant elements. 30The explanation in streetscape conservation includes: In order to retain the heritage significance of the HCA it is important that development generally does not adversely affect the heritage significance of streetscape settings or adjoining significant items and does not obscure the view of items from the public domain. The HCA has a complex and varied subdivision pattern, which demonstrates the different historical stages of its development and contributes to the areas aesthetically significant visual complexity. 31Relevant streetscape provisions include: (g) New buildings and alterations should maintain the predominant front and side setbacks in the street or in the vicinity. 32Section 4 relates to new building or replacement development and it is important that the prevailing pattern of consistent setbacks from the street and side boundaries, and that compared with heritage items, there is greater scope for design flexibility with new buildings provided the proposed work will not detract from the significance or character of the streetscape, individual heritage items, or the HCA generally. 33The objectives for new building development are: (1)Ensure that a new building including development in the vicinity of individual heritage items respects and conserves the significance and characteristics of the HCA. (2)Ensure that new development satisfies infill principles, that is, is appropriate to its context in terms of scale, massing, character, orientation, siting, setback, materials and detailing. (3)Ensure that new development retains an appropriate visual setting for heritage items in the conservation area. 34The relevant provisions for new buildings are: (c) Buildings should not stand forward of adjacent buildings in the streetscape or project into rear yards beyond the established rear alignment of the existing buildings. (d) New buildings are to relate to the predominant scale of those surrounding. (e) Building form and character should complement the form and character of neighbouring heritage items... (f) Contemporary design for infill development is to respect its context and achieve a cohesive relationship with historically significant existing fabric. (h) Buildings should not mimic existing Victorian federation character and details, contemporary interpretation of traditional characteristics and details is more appropriate. 35The section for garages and carports in (5) contains the following objectives: (1)Ensure that new garages, carports are sited and designed to respect the established development pattern of the area. (2)To retain an appropriate setting heritage items. (3)Ensure that residential buildings rather than vehicle access and parking structures, remain the dominant elements in the streetscape. 36This section also contains the following provisions: (a)Garages are to be separately articulated from the rest of the building. (b)Driveways and driveway crossings are to be a single car width with minimum hard-surface area. (c)It is encouraged that carports be sited behind the main building line. Where this is not possible / practical, they should be designed sympathetically with the existing pattern of vehicle accommodation and development. Garages must be provided behind the front building (same policy as for whole LGA). (d)Double garages (side-by-side or tandem) will not be permitted, other than at the rear of the block or otherwise screened from view. (e)Garages are to be of a scale, form and character compatible with traditional garage forms especially where they are visible from the street. (f)Garages/carports or garage doors are not to be built into the street facade of houses, so that they appear to replace a normal room with a garage and its associated door. (g)Sheds and other outbuildings/structures are to be located in rear yards. 37The Sydney Region Environmental Plan (Sydney Harbour Catchment) 2005 is a relevant instrument for consideration, together with its companion of the DCP. In essence, the visual impact of foreshore development must be considered by a consent authority in determining an application. Expert Evidence 38The joint heritage consultants agreed that: While of diverging opinions as to the contribution of the existing dwelling upon number 24 to the heritage conservation area the experts agree that the current approval by Lane Cove Council is for demolition of the existing building and that subject to the resolution of the two conditions of approval under appeal the replacement dwelling can be pursued in accordance with the development approval. ... The experts agree that aspects of the development at number 24 which are in dispute will not adversely impact the significance of the heritage item at number 41 George Street, nor that of another nearby heritage item at number 18 Wallace Street. 39On the contention whether or not the proposed trafficable terrace over the carport should be approved, Mr Moore considers that it is not in keeping with the established streetscape character of the immediate locality and the conservation area generally. He considers the impact will be intrusive and it also adversely impacts the amenity and privacy of the adjoining heritage listed house at 22 Wallace Street and he considers privacy conflicts will arise for the use of the front veranda from which the established views to the river are enjoyed from number 24. Mr Moore does not consider that the roof terrace is a reasonable design response, as access to the views are available from the site and not dependent upon the design feature of the front terrace. 40Mr Staas states that council's condition of approval simply states that the trafficable surface be replaced with a non-trafficable roof, this would result in no substantial visual change to the approved development beyond the removal of the edge planter box and glass balustrade. He considers that there would be little or no change to the streetscape character with the condition imposed by the council and that the impact on the streetscape is minimal in this location. Mr Staas also points to recent approved similar terraces within the same conservation area and he states that the statement of significance for the conservation area provides nothing which would indicate that the proposed development affects its identified level of significance for variety and domestic scale. He further states that from the adjoining heritage property, the proposed terrace has minimal impact on the amenity of that residence and is in fact less than the current impact of the existing terrace on the subject site. He considers the amenity concerns raised by Mr Moore are minimal and do not constitute a heritage argument for the non-trafficability of the area, which would otherwise be replaced with an exposed roof in the same area. 41On the second contention, as contained in condition 2B, as to whether the building should lowered by a further 300 mm, Mr Moore is of the opinion that the height of the building is a key factor in its impact upon its context and setting. He further says that, council in giving conditional consent to the house, has accepted its form, bulk and character but has specifically requested that the height be reduced by 300 mm, additional to the 300 mm accepted by the applicant (as shown in the amended plans). Mr Moore is of the opinion that the reduction should be achieved by reducing the interior height and exterior wall height of the new dwelling and in his opinion this can be implemented without unreasonable loss of amenity in the new dwelling. 42Mr Staas is of the opinion that the condition imposed by the council is not specific in its requirement and does not stipulate where the additional height reduction is to be made and while Mr Moore would prefer that the internal height of the spaces in the building be lowered, the applicant has no intention of reducing the amenity of their accommodation to meet the condition, but would further reduce the ridge height of the roof. In Mr Staas' opinion, there is no significant impact on the streetscape or on the adjoining heritage item. Mr Staas comments that the existing house already establishes a substantial presence along the western boundary adjoining the heritage item at number 22 and any reduction in the wall height would not achieve any substantial benefit. And that the additional reduction of 300 mm in height by the condition would simply result in a less traditional roof form without providing any change to the perceived height of the structure and the streetscape. Mr Staas considers that Mr Moore's comments go beyond the scope of the condition imposed by the council that only required a lowering by 300 mm. 43Mr Moore describes the house at number 22 as: A substantial single-storey Edwardian federation villa, with the characteristic features of its type - a strong terracotta Marseilles pattern tile roof, elegant timber joinery veranda trim and windows and the distinctive dry pressed face brick and common brick walls typical of its style. The house features a front veranda returning to its western side and including a small splayed northwest corner sitting out area. A modern interpretive carport has been built on the northwest front corner its site allowing for vehicles to continue through it and along the driveway running down the western side of the house. 44Mr Moore describes number 24: Acknowledges that the extent of change means it has lost its integrity as an architectural work and that the house is a melange of periods and detail, its character is essentially neutral within its context - while it no longer adds heritage value, it does not markedly detract - in my opinion from its context. ... The design of the house proposed for the site and conditionally approved by council is for a house of three levels - being two above ground floor levels and a basement - and of a blocky, rectangular form with expressed two storey high walls of stone and rendered brick masonry, and a low pitched hip roof ... in my opinion the house adopts a markedly different character to its immediate neighbour, the heritage item at number 22. While its adoption of a rectangular modern idiom might not be problematic, its two-storey expression against a single-storey Edwardian house leans toward an imbalance and dominant effect. ... In my opinion, the proposed dwelling has pursued a design agenda showing little regard for the exhortations of the LEP and DCP ... The overall height of the house is also partly created by a 3.3 m ground floor to upper floor dimension producing a ground floor ceiling height of approximately 3 m in my opinion, the nonconformity of the proposed carport - deck with council's controls, this consequent costs to the amenity of the locality arising from this feature, particularly for the adjoining heritage item number 22 and the impacts arising from the proposed height of the building support the reasonability of the consent conditions which are disputed in this appeal. ... it is clear that a contemporary design can be appropriate for this site in its context in the conservation area. 45Mr Moore is of the opinion that the proposed trafficable deck will emphasise a substantial built feature, located in what would otherwise be the front garden setback of the house and it will be seen as anomalous and inconsistent with the older streetscape of the locality and exacerbate the differences of the house to which it is attached from the older houses around it, particularly the glass balustrade. 46In Mr Moore's opinion the deck feature is not characteristic of the earlier development within the HCA and will contribute to the diminishment of its distinctive character and significance, the feature is not necessary and is avoidable. He further states that the proposed deck will sit directly in the view line of the heritage item at number 22 from its front veranda to the river, it will prejudice the mutual privacy of both properties, but more particularly place a sitting out area of potentially intense use directly between number 22 and the view it has enjoyed since its construction, the new house has other outdoor sitting options. 47On the objectives of the zone, Mr Moore comments that the proposed deck is not consistent with improving existing residential amenity given its impact on number 22. The visibility of the new house and the deck area arguably has not been foremost consideration in their design, given the relative form, bulk, scale and materials of the residence overall. 48On the question of the deck being out of character with the HCA, Mr Moore comments that again the form, bulk, scale and materials do not suggest a priority has been given to these concerns and the deck is just one more element of a limited response to the controls. 49Mr Moore comments on the Development Control Plan objectives and considers that the overall design of the proposed residence interprets these provisions very liberally, council has accepted the proposed design while taking exception to the trafficable deck and overall height of the dwelling. The proposed elevated deck in the front garden setback does not fairly respond to the council's controls and the occupation of the outdoor area of the deck at this elevation will make it obtrusive in the streetscape and accentuate the nonconformity of this dwelling with its older neighbours. On the provision that buildings should not stand forward of adjacent buildings in the streetscape, Mr Moore considers that the proposed carport deck structure does not meet the spirit and intent of this clear and straightforward provision. 50Mr Moore considers that the proposed deck above the carport does not satisfy the objectives for garages and carports in the DCP concerning established development pattern of the area and that residential dwellings, rather than vehicle access and parking structures, remain the dominant elements in the streetscape. 51On the contention that the building should be lowered a further 300 mm to a maximum ridgeline of RL 39.39, Mr Moore considers that the proposed building would be positively affected by the proposed reduction in height and the comparative height, scale and bulk of the proposal will be beneficial by a reduction in height. Similarly, Mr Moore considers that the 300 mm reduction will enhance compliance with scale and appearance and landscape character the objectives of the residential zone, in response to do the locality description for the Greenwich HCA that all buildings and landscape features should contribute to the significance of the HCA, in Mr Moore's opinion the proposed height contributes to the obtrusiveness within the context and the reduction in height would beneficially impact that obtrusion. 52The council's requirement that new buildings relate to the predominant scale, Mr Moore considers that the designed form and bulk will exacerbate its difference in scale from its neighbours and the reduction in height is one action which can have some positive impact on its debatable response to otherwise reasonably and fairly honour this requirement. 53In Mr Staas' opinion, the revised design (exhibit A) has taken into consideration the potential impacts of the new infill design has on the adjoining item and the public domain and addresses the matters raised by council in a reasonable and acceptable way. In particular, he states that the changes to the car parking arrangement and modifications to the street facade provide a contemporary design with minimal impact on any perception of the new dwelling in relation to the adjoining heritage listed house. ... The proposed building combines both traditional and contemporary materials with a traditional overall form and elevational treatments combining vertical proportions and physical definition with a realistic approach to and response to the views available from this site. Mr Staas comments that: The conservation area in this locality is quite mixed in character and in Wallace Street comprises two individual heritage items set between the new full buildings. ... Due to its location at the end of Wallace Street the new building is not read strongly as part of any cohesive streetscape character, its height and visual bulk is similar to the existing house and its visibility from the river is adequately screened by existing panting along a public walkway. 54In Mr Staas' opinion, the proposed design will be neutral and its impact on the setting of the Federation house, as there are no impacts on any established views to or from the adjoining heritage item and the redesigned character of the garaging maintains an open character to the street, while permitting views to the north-west over the site from the adjoining house. Mr Staas further comments that the bulk of the proposed building along the eastern boundary maintains a similar relationship to the adjoining house as is created by the existing house and it is noted there are no significant windows looking to the subject site. 55The planners prepared a joint report and matters upon which they agreed include the fact that the house and carport was approved by the Council, subject to conditions. They also agree that in terms of the Lane Cove DCP, s C1.8 for carports within the front setback that the proposal complies except for 1.8B(ii) within the following clause: 1.8B carports are permitted within the front setback areas where: (i)The carport has an open design and has minimal impact on the streetscape. (ii)The carport is not have a trafficable roof. (iii)Open security gates are permitted. (iv)The carport posts are to be set back a minimum of 1 m from the street alignment. 56The planners also agree that the proposed glass balustrade to the terrace above the carport has a negligible impact on the views from the front veranda of adjoining house at number 22. They agree that the views from number 22 are primarily to the north and north-west across the front yard and its own front carport and across the existing carport and terrace at the front of 24. The view includes across the hedge running along the side of 5 Mitchell Street, directly opposite the site and an oblique view across the subject site. They further agree there will be a minor improvement to the view by the increased setback of the new carport and trafficable roof, compared with existing carport and deck. They also agree that compared with the existing terrace, the proposed terrace would have reduced angle for overlooking between properties. 57Mr Betros considers that the close proximity of the terrace and pedestrian walkway would generate adverse mutual privacy impacts. He further considers that furniture and the retractable awning and any planter boxes will add to the visual bulk and prominence of the terrace and the streetscape and that the proposed terrace is a virtual extension of the internal living area and therefore lead to greater use. He also considers that the terrace is unreasonable and unnecessary, given that the dwelling has alternative terraces and with similar aspect and views. Mr Betros is also concerned that the approval would compromise the integrity of the recent DCP in this conservation area. And that existing terraces are either poor planning examples or are in a different context that proposed. Mr Betros is also considers that the terrace component exacerbates the prominence of the dwelling in the conservation area and the dwelling bears no resemblance in formal character. 58Mr Long on the other hand, considers that there would be little visible change the appearance of the carport by the deletion of a glass balustrade to provide the terrace. The removal of the planter box along the front would be negative in terms of streetscape presentation. He is also of the opinion that being at the end of a cul-de-sac means the structure is less prominent to traffic and pedestrians and that it is well designed with a set back from the street and pathway to allow landscaping. In his opinion, the proposed carport terrace can be distinguished from others existing within the area, as the proposal has been thoughtfully designed to form an integrated element of the new house with landscaping in a planter box along the front edge and on the sides. In his opinion, the replacement of the existing deck will maintain a high level of amenity for the occupants of the dwelling, with its north aspect and views across the river. Furthermore, in his opinion, there will be no adverse impact on the views or privacy of number 22. 59It was agreed that the condition to lower the building a further 300 mm would not be visible from the street or the adjoining properties and he has also agreed that the reduction in height of the whole building, as shown on exhibit A, is better in reducing height, wall height and visual bulk, compared with reducing the roof pitch of the roof shape to a maximum ridge height of 39.39. However, Mr Betros considers that reducing the height of the whole building including the walls would reduce the wall height and visual bulk and the non-compliance in the north-western part of the dwelling. 60Mr Betros considers that the terrace should be reduced in size to match the depth of the first-floor balcony, that is approximately 1 m, to reduce the impact of the dwelling on the streetscape, while still maintaining views from the front balcony and not significantly compromising the amenity of the dwelling. Mr Betros is of the opinion that the amenity of the residential area is detrimentally affected by the proposed deck, in terms of heritage impacts views and privacy and that the bulk, including the balustrade, is considered an inappropriate feature in the streetscape adjacent to the heritage item. 61On the contention that the dwelling be lowered a further 300 mm, Mr Betros considers there is scope to reduce the wall height through the reduction of the ground floor ceiling level and this would have a positive streetscape outcome, while also providing for an improved relationship with the heritage item. 62Mr Long considers that the terrace above the carport and the building height at the amended RL of 39.69 will be consistent with and achieve the objectives of the zone and will not adversely impact on the residential amenity of the area. He further considers that in terms of streetscape, the proposal includes a planter box with landscaping along the front, so that the carport and terrace is integrated into the landscape setting at the front of the site. He also states that the reduced size and shape of the terrace, compared to the existing deck, allows for meaningful landscaping on both sides particularly the western side adjoining Serpentine Road. He also considers that the combination of sandstone and rendered wall finishes will complement the materials and finishes of the house and creates an attractive integrated parking structure that will not dominate the house or the streetscape. 63Mr Long points out that the condition only calls for deletion of the glass balustrade and the planter box and this would not provide any perceptible difference in the height or bulk of the carport and in his opinion, the planter and terrace would be superior in design and appearance from the street, as opposed to a flat-roofed carport. He also notes the site has a unique position and the topography changes from this point, compared to the regular pattern of Wallace Street. He also makes the comment that Wallace Street does not have a unified or cohesive streetscape or character and includes a variety of dwelling house styles and sizes and that the front setbacks are varied in depth and generally landscaped and in some cases punctuated by driveways and parking structures and high front fences. The short section of the street between Mitchell Street and the west end of the street where it terminates, includes a high painted brick wall along the Wallace Street boundary in front of the heritage listed house at 7 Mitchell Street and a front carport with a pitched tile roof in front of the adjoining heritage house at 22. On the opposite side of Wallace Street is the side boundary of 5 Mitchell Street that runs from Mitchell Street to the west end of Wallace Street and this includes a high dense hedge for screening along the street edge on the side of the house, which is close to the street boundary. To the east of Mitchell Street, there is a community tennis court complex. 64On the issue of setbacks, Mr Long comments that the deletion of the terrace above the carport would not change the front setback or landscaping and the carport is approved with a 2 m setback and the dwelling at a 7.035 setback and this would remain unchanged, with the conditions imposed by the council. Mr Long also comments that the landscaping on the eastern side of the terrace will assist in providing a natural screen between the neighbour's verandah at 22 to achieve privacy to both parties And as such, he considers the visual and acoustic privacy is acceptable. 65Mr Long comments that the proposed deck is clearly an essential and functional element of the house, as it provides a north facing private open space area, adjoining the main living areas and the previous deck provided enjoyment to the owners of the property for many years and provides a high degree of amenity to the dwelling. He cites a number of trafficable roofs on carports and garages within a front setback of streets within the Greenwich Conservation Area. He states that the design of the proposed house and carport and terrace improves the vehicle access to the site and includes a similar but smaller north facing terrace for private open space to enjoy the desirable north aspect and views. He further comments that the essential objectives of the DCP are achieved by the reduced size of the terrace, the increased setback to both street boundaries, the materials and finishes and the provision of landscaping. 66On the contention that the building should be lowered a further 300 mm and in the context of the controls, Mr Long provides the following comments, that to comply with the council's condition the building height could merely be reduced to comply by either reduction in the pitch of the roof or the incorporation of a flat roof section in the centre of the roof or a combination of the two. He states that this would not change the height of the carport and the roof terrace. Mr Long considers that the reduction of 300 mm as shown in the amended plans to the Court at exhibit M as opposed to a 600 mm as required by the council, achieves an acceptable and appreciable reduction in the height and bulk of the building. Findings 67It was submitted on behalf of the council that the conditional approval granted by the council should remain on foot. In other words, the council does not contend the dwelling should be refused consent but that the council's approval with the imposition of the two conditions: to lower the building an additional 300 mm; and to delete the terrace above the carport should stand. 68Having regard to all the evidence to the court including: that of the objectors and experts; the planning regime in particular the Lane Cove local environmental plan and the development control plan; and the site inspection I have determined on a merits assessment under section 79C of the Environmental Planning and Assessment Act that the proposed development, as shown in exhibit M and subject to conditions, is satisfactory for the reasons below. 69Following the first day of the hearing in court, the applicant sought leave to rely on amended plan and this was granted noting the amendments are considered to be minor. The amended plans became exhibit M and changes include; an increased setback to the street of the carport structure from 2 m to 3.035 m with a panel lift gate to the carport at this setback. The terrace above the carport has an increased setback to 4.035 m with a depth of 3 m with a 1 m planter above the car port to the street. The 7m setback to the wall of the dwelling to the street is maintained. Other changes include deletion of the retractable awning / roof over the terrace and and a decrease in the width of the driveway from 5 m to 4 m with increased landscaping. The increased setback has been achieved by a reduction of 200 mm to the rumpus room. 600 mm to the cellar and the storage at the rear of the garage has been deleted. 70In my assessment I have made the development control plan a central focus and fundamental element in my assessment of the application as shown in exhibit M. It was submitted on behalf of the respondent that I can not substitute a different test as provided in the authority of the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Limited 2009 NSWCA 226. The Court of Appeal judgment in Canterbury City Council v Zhang is also authority for the role of development control plans in the assessment of a development application and the need for serious consideration of recognising the circumstances of the case. 71The planners agree that the provisions for carports located within front setback areas are complied with except the carport is not to have a trafficable roof. 72In the circumstances of this case I agree with Mr Long and in my assessment a variation from this provision is justified given the terrace is integrated into the design together with the location of the site at the end of the street allows for it not to interrupt the rhythm of the streetscape or make it a dominant element nor impose on the public domain. For these reasons it should also not be used as a precedent and in this regard I have considered the authority of Goldin . 73Furthermore, I am satisfied the terrace does not have unreasonable impacts for privacy or views on the dwelling at No 22, nor does it have adverse impacts for the heritage item of 'Riverside' at no.22 and its landscaped setting, or the Heritage Conservation Area that would warrant its refusal. 74The provision of the DCP for privacy - visual and acoustic - "the depth is not to exceed 3m" is now complied with and in my assessment the car parking objectives in 1.8 are also satisfied, in particular to ensure that the design of car parking structures is consistent with the dwelling and has minimal impact on the streetscape. 75The landscape area objectives and provisions of the DCP cited above are also met by the amended proposal in exhibit M in my assessment. In particular, distributing landscape area to minimise dominance of buildings, structures and paving when viewed from the street, public places and surrounding properties. 76The DCP contains provisions for the Greenwich Heritage Conservation area -Locality 5 and in my assessment the proposal is not inconsistent and is compatible with the overall objectives and the streetscape objectives as well as the objectives and provisions for new building or replacement development as cited above, including new buildings to relate to the predominant scale of those surrounding and buildings should not stand forward of adjacent buildings. In this respect the wall of the dwelling is consistent in setback with the dwelling at no.22 and the subject terrace while forward of this line is within a landscaped setting behind the carport of no.22. The provisions of the LEP also require consideration of the effect of the proposal on the HCA and the heritage item, and the impact in my assessment is satisfactory. 77The applicant pointed to a number of roof top car port /garage terraces, however, as submitted on behalf of the respondent these were generally not approved under the current DCP and many are undesirable planning outcomes and indeed the council's recent DCP is seeking to ensure they are not repeated. The council's DCP requirements are central to my assessment and I am satisfied the departure in the circumstances is justified and meets the relevant objectives. 78I agree with the evidence of Mr Staas and Mr Long that the trafficable car port roof/ terrace is well integrated into the design of the dwelling and the site has a unique location in the street and as such it will not be a dominant element or inconsistent or incompatible with the Heritage Conservation area. As such in my assessment, it does not create a precedent that other applicants may seek to invoke given at the circumstances and the merits of the application before me. 79I am satisfied that the terrace meets the objectives for carports as set out in the council's development control plan. 80The respondent contends the carport terrace is non compliant with the objectives 3,4, and 5 of the R2 zone. The residential amenity of the area will be maintained for existing dwellings and the proposed dwelling and the proposed dwelling will not be highly visible when viewed from the water and landscaping for the site will be a major element in the residential environment. The proposal is also satisfactory when assessed under the Sydney Harbour Environmental Plan 2005 and its DCP. 81The contention to lower the building an additional 300mm over that shown in Exhibit M is not required in my assessment under the LEP and DCP provisions. On this occasion I am persuaded by the evidence of Mr Long and Mr Staas for the applicant that the dwelling as shown in exhibit M is satisfactory in the streetscape and when viewed in the context of the adjoining heritage item and the HCA and that a reduction would not be discernable and furthermore a reduction as required by council's condition that could have the effect of reducing the pitch or the roof would be detrimental to the presentation of the dwelling in the streetscape and in the context of the adjoining heritage item. I am also satisfied the proposal is not inconsistent with the zone objectives 3, 4 and 5 as cited in that the residential amenity of the area will be maintained, the dwelling is not highly visible from the water and landscaping is enhanced. 82The proposal complies with the setback provisions of the DCP. The wall height provision of the DCP is not complied with and the greatest exceedence in the north western corner where it is about 8.2 m. The amended plans show compliance on the eastern elevation with the 7m wall height and there is compliance with the overall height of 9.5m for the building. In the circumstances the limited area of non compliance with the wall height is acceptable in the circumstances and there are no impacts created from this portion of non compliance in my assessment. 83Similarly in the circumstances the exceedence in number of storeys is justified given the topography and overall height compliance. Furthermore the proposal is satisfactory in this portion of the streetscape and does not create adverse impacts. 84I note the internal floor to ceiling height for the upper bedroom level is 2.55m and for the lower living area about 3m, after allowing for services between the upper floor level and ceiling of lower floor. The respondent contends that the reduction to 2.85 for the living area. In my assessment the upper level floor to ceiling is minimal and the choice for height in the living area is not unreasonable or unnecessary in the circumstances. A further reduction on balance in my assessment is not warranted as I am satisfied the objectives of the controls and guidelines are met. 85In my overall assessment I have considered the principal of necessity and reasonableness and the proposal in my assessment provides the necessary balance of seeking the amenity this unique location offers by the provision of the terrace above the car port, without unreasonably impacting and maintaining the amenity of the surrounding area. The proposal represents change but the role of the Court is to assess the application in the context of the planning regime and whether unreasonable impacts would be created. In my assessment I must consider impacts on the surrounding area and the built form outcome. I am satisfied the proposal warrants approval. 86Furthermore in my assessment exhibit M shows a better resolved built form where the car port and terrace are integrated into the design of the dwelling that will provide a more satisfactory outcome in the streetscape than the conditions contested would achieve. 87I have carefully considered the impacts on No 22 'Riverside' in my assessment. I am satisfied that the amenity concerns of overshadowing light and privacy would not warrant refusal. I accept that in conservation areas there is often a conflict between new infill development as opposed to conserving existing buildings and the Greenwich HCA is eclectic. 88In my overall assessment based on the evidence for the narrow focus of this appeal on the conditions of the carport terrace and the height of the proposed dwelling I have concluded the appeal should be allowed. Orders 89Accordingly, based on my assessment above, the formal orders of the Court are: (1)The appeal in respect of the property known as 24 Wallace Street, Greenwich is upheld. (2)The development application submitted to Lane Cove Council, and as amended and shown in exhibit M, is determined by the granting of consent, subject to the conditions in annexure A. (3)The exhibits are returned to the parties with the exception of C, M, N, O and exhibit 9. J S Murrell Commissioner of the Court FIGURE 1 - AERIAL PHOTOGRAPH FIGURE 2 - STREET ELEVATION FIGURE 3 - EAST ELEVATION TO NO 22 FIGURE 4 - SETBACK OF NOs 22 AND 24 ANNEXURE A - CONDITIONS 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: 04 August 2011