Land and Environment Court New South Wales Medium Neutral Citation: Waters v Ashfield Municipal Council [2011] NSWLEC 1255 Hearing dates: 15 August 2011 Decision date: 15 August 2011 Jurisdiction: Class 1 Before: Smithson AC Decision: 1.The appeal is upheld. 2.Deferred Commencement Conditions 1 and 2 of Part A of DA 10.2011.017 are removed. 3.The exhibits are returned to the parties with the exception of Exhibits 1, 4, 5, A, B, and C. Catchwords: Deferred commencement conditions, lateral extensions, Haberfield Conservation Area, side vehicular access to the rear Legislation Cited: Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan 1985 Ashfield Development Control Plan 2007 Category: Principal judgment Parties: Kim Waters and Perry Delaney (Applicants) Ashfield Council (Respondent) Representation: Ms Saw (Applicant) Mr Peter Jackson - Pikes Lawyers (Respondent) File Number(s): 10509 of 2011 Judgment This determination was given extemporaneously and has been edited prior to publication . 1 This is an appeal against the imposition by Ashfield Council (the Council) of two Deferred Commencement conditions imposed on a development consent for alterations and additions to a single residential semi detached dwelling at 3 Tillock Street, Haberfied and imposition of a third condition requiring a contribution to be paid to the Council. 2 It was subsequently agreed by the applicants that the third condition requiring a contribution was no longer under appeal. 3The remaining two conditions in essence require a removal of a lateral (side) extension to the residence in order to retain the existing side setback and the potential for side vehicular access to the rear yard. 4The subject site, Lot 51 in DP623750, is located on the eastern side of Tillock Street between Waratah Street and Dobroyd Parade. It is some 338 sq m in area with a 7.495m frontage. The site falls approximately 1.7m from Tillock Street to its rear or eastern boundary and contains a single storey semi detached dwelling of interwar years. 5Surrounding development comprises predominantly single storey residential developments. The neighbouring properties comprise a single storey semi detached dwelling and cottage, to the north and south respectively. A two storey retirement village adjoins to the rear. 6Of particular relevance to this appeal, the site is located within the Haberfield Heritage Conservation Area (HCA) as designated within the Ashfield Development Control Plan 2007 (DCP). Part C7 of the DCP notes that Haberfield has long been recognised as a suburb of heritage significance being the first Garden Suburb in Australia, listed as an Urban Conservation Area by the National Trust in 1978 and on the Register of the National Estate since 1990. 7The site is zoned Residential 2a under the Ashfield Local Environmental Plan 1985 (LEP). 8By way of background, Development Application 10.2011.017 was lodged on 21 January, 2011 and proposed partial demolition of the existing dwelling, total demolition of the garage/carport and garden shed, a split level two storey rear addition, new driveway and car port to the side of the dwelling, a retaining wall on the south western boundary and a new front fence. 9The application was notified and four submissions were received. These raised a number of issues including but not limited to: stormwater runoff, appearance and encroachment of the retaining wall, the carport's location, length and size, the extent of the rear excavation, overlooking and privacy issues from the rear extension, the loss of symmetry from the street view, disruption of the harmony of the HCA due to the rear addition, separation from side boundaries, need to retain side setback and driveway, and building form. None of the objectors were present at the hearing however, their submissions have been noted. 10In response to the objections, the applicants advised there would be little excavation, no major changes to the front facade, and that maintaining rear access or setting the carport further back would reduce the amount of landscaping. 11It is noted that a number of the grounds of objection are not related to the matters the subject of this appeal or have been addressed by conditions of approval. 12The application was granted deferred commencement consent on April 12, 2011. Of the conditions imposed, the following 2 remain the subject of this appeal: DA Condition 1a - Part A - Deferred Commencement Condition 1 A reduction in size to the lower basement level to maintain the existing driveway setback through removal of the lateral extension of the addition DA Condition 1b - Part A - Deferred Commencement Condition 2 Retention of access to rear yard through deletion of the proposed garden bed and stairs within the southern setback 13It was subsequently agreed by the Council that the second condition, 2, was not the major issue and that the garden bed and stairs could be constructed given that a future owner could readily remove them to reinstate vehicular side access if required or desired. 14In essence however, the two conditions go to the same issue for the Council namely requiring design changes prior to the development commencing to achieve a single outcome, which is to maintain a side separation between the subject land and the adjoining property to the south. The visual importance of the separation, to allow views into the rear yard and between buildings on adjoining allotments, was stressed by the Council's Heritage Advisor, Mr Moore. 15Specifically Deferred Commencement Conditions 1 and 2 were imposed by the Council to, in the Council's view, 'properly address heritage concerns'. In particular, the proposed development into the side setback was considered unacceptable by the Council as it would result in development uncharacteristic of the built form and separation of dwellings within the HCA. The DCP states that side access to the rear of properties should be retained. 16In particular Clause 2.6 at (e) of Part C7 of the DCP states "Extensions are permitted only to the rear. In certain circumstances (where there is inadequate rear land), modest side extensions may be allowed where this does not alter or overwhelm the original front faade or the presentation of the house from the street". 17Mr Moore advised that the uniform pattern of site coverage and setbacks is one of the most significant heritage features of Haberfield establishing the principles for suburban development. Haberfield is noted for its building site coverage, siting and side car access which all contribute to the streetscape appeal. The DCP states that Haberfield's pattern of house placement and setbacks should not be disturbed. 18Mr Jackson, solicitor for the Council, cited clause 35 (1) (b) of the LEP which states that, within the HCA, the Council must not grant consent...unless, where it is proposed to use the natural slope of the land (as in this instance) to add habitable accommodation in a level below that of an existing house, the Council is satisfied that such basement accommodation does not, relevantly, "change the setting of the existing house". 19The applicant's architect, who is also experienced on heritage matters, Mr Straesser and Counsel for the applicants, Ms Saw argued that the existing side access was already untrafficable, that the site already had a side setback as it was one of a pair of semis, the other having the potential for access down the side, that the site was constrained by its size relative to the much larger size of other lots in the area, that the development was significantly improving the visual presentation of the site to the street and that an existing garage already intruded into the side setback area. Mr Straesser and Mr Saw also argued that extending at the rear would further reduce the amount of landscaped area, which was already less than DCP requirements. 20Ms Saw further argued that the approved development complies with the minimum side setback requirements of the DCP for development in the municipality generally (being 900 mm under Part C15 of the DCP) and that by providing a 900mm setback the view to the rear of the site would be improved relative to the blocked view currently caused by the existing garage. 21It was agreed by both parties that the existing dwelling is not itself of heritage value, rather the issue is the use of and views through the side setback area. 22It is was also agreed between the parties that the site is already undersupplied in terms of landscaped area and the portion of landscape area will marginally improve under the proposal. 23The Court notes that the development complies with DCP requirements in terms of overshadowing, privacy and views. Most of the issues raised in public submissions have been dealt with by conditions of consent that are not the subject of this appeal. It was not in dispute that that the extension complied with the intent of the DCP to maintain single storey character or that there had been consultation between the applicants and the Council's heritage advisor with the plans being modified a number of times to try and address DCP heritage requirements. 24In Mr Moore's initial advice to the Council's planners, he states that Council has recently accepted similar incursions of this nature in similar circumstances into side setback areas and that whilst the design remained problematic it was "probably close to the best outcome achievable in the circumstances" and that small amendments could make the design acceptable. 25However, at the hearing Mr Moore argued that the side setback needed to be retained to pursue the intent of the HCA. The view to the rear and maintaining separation between buildings was part of the Haberfield landscape. Mr Moore believed that there was an adequate rear yard to accommodate the extensions as an alternative to the side and that side setbacks were important to maintain views into vegetated rear yards which was part of Haberfield's character. Mr Jackson noted the side setback incursion was only 14.5 sq m and this could be readily accommodated in the rear. 26However, Mr Straesser argued that the proposed extensions in totality respond to the circumstances of the property - in particular its small size relative to other lots in Haberfied, the fact it is a semi with consequent limited options for extension and that the DCP controls at DCPC7 s2.6 allow incursions into the side area in circumstances where there is inadequate rear year. By extension Mr Straesser transposes this to equate to a lot size, which is substantially smaller than the norm. In evidence Mr Straeser submitted that the site is 50% smaller than the average Haberfield lot and that the existing garage already blocks the view to the rear yard. Further that the extensions would remove this and in fact open up more of the view as the driveway of the adjacent lot runs parallel to the subject driveway and immediately adjoins it and result from the semis being uncharacteristic in the area. 27Ms Saw also argued that, by allowing the garden bed and steps, Council had already accepted the loss of side vehicular access and the issue was then only one of visual impact. In this regard, in her view, the proposed development would improve the visual elements by removing a garage which extended from the building to the side boundary, and replacing it with an open and detached car port, screen and garden beds, which would improve the view to the rear, with the lateral extension being well to the rear and a 900mm setback from the boundar. Ms Saw also believed the loss of more of the rear yard to accommodate the lateral extension would impact on another element of the DCP being the importance of rear garden areas. 28I am cognisant of the importance of the Haberfield HCA and acknowledge Council's controls through the DCP and LEP are aimed at protecting the existing significant heritage character of the suburb, which includes side separation of dwellings and, in the main, side vehicular access to the rear. 29However, it is not in dispute that Council has allowed side setback incursions to occur in other instances based on the circumstances and merits of the application. I also note the driveway of the adjacent property at 1 Tillock Street has a car port screen that effectively totally removes a side separation or views through to the rear from this adjacent property. 30In this regard, and on balance, in my view a number of matters warrant support of the extension as proposed by the applicants, namely: (a)The site is smaller than those of surrounding properties with the amount of existing landscaping, which primarily comprises the rear year, already less than is required in the DCP. The application marginally improves this. (b)The development meets the test of Clause 2.6 of Part 7 of the DCP given only modest extensions to the side are proposed and these can be justified rather than further incursion into an already small rear yard. I note that the Council did not argue that such extensions would alter or overwhelm the original front faade or the presentation of the house from the street. Rather the concern was with the partial loss of a side separation to the adjacent dwelling to the south. (c)The side setback and view to the rear is already compromised by the existence of a garage attached to the dwelling and extending the full width of the driveway to the adjoining boundary. Removing this structure and replacing it with a car port, garden bed and a rear lateral extension which introduces a 900mm side setback will, in my view be an improvement to the visual appearance from the street and still meet the intent of the DCP. (d)The side driveway will be retained at the front portion of the property and the Council has approved an increase in elevation to the driveway, a car port including a rear screen, and a garden bed and stairs in the side setback area. The lateral extension to the dwelling will be behind these elements at the rear of the existing dwelling. It will therefore be largely screened by approved new elements. (e)From a site viewing, it is apparent that the dominant visual element at the rear of the property is the two storey retirement villas and a number of trees on adjoining properties. This view will largely be maintained. (f)I am not of the opinion that extending at the rear would be a better outcome to meet the objectives of the LEP or DCP. It would further reduce the rear garden element and could technically result in a redesign which could retain the existing garage. 31In my view the "setting of the house" as may be interpreted from clause 35 of the LEP is not materially changed as the existing dwelling will be retained whilst the garage will be replaced with a car port and lateral extension of a total of 1.5m in width and at the rear of the dwelling behind the new car port and elevated driveway. 32I am of the opinion that the lateral extension will not be a visually dominant or even reasonably noticeable element in the streetscape and when considered in the context that it will not extend the full width of the side setback but replace a garage that currently does, the intent of the LEP and DCP are met. 33I do not accept that by removing an existing agreed unsympathetic element of the current development which is commonly agreed does not meet the DCP or LEP objectives, namely the existing garage should be used as the basis to justify that it can't be replaced in area by a lateral extension of the house, when that extension provides at least some side separation and views to the rear than otherwise currently exists. Were the garage not in place already removing side separation at least in part, and there been a material impact on the driveway setback at the front of the dwelling, the DCP controls would have more weight to the Court. 34On the basis of the circumstances of the site and having regard to the relevant controls, the Court finds that the deferred commencement conditions should be removed and the development approval otherwise proceed in accordance with the approved plans. Orders 1.The appeal is upheld. 2.Deferred Commencement Conditions 1 and 2 of Part A of DA 10.2011.017 are removed. 3.The exhibits are returned to the parties with the exception of Exhibits 1, 4, 5, A, B, and C. J L Smithson Acting 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. Decision last updated: 31 August 2011