La Tella v Ashfield Council [2009] NSWLEC 1085 (18 March 2009)

New South Wales Land and Environment Court

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La Tella v Ashfield Council [2009] NSWLEC 1085 (18 March 2009)

Last Updated: 23 March 2009

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
La Tella v Ashfield Council [2009] NSWLEC 1085

PARTIES:
APPLICANTS
R & M La Tella

RESPONDENT
Ashfield Council

FILE NUMBER(S):
11187 of 2008

CATCHWORDS:
Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373

CORAM:
Moore C

DATES OF HEARING:
19 February 2009

JUDGMENT DATE:
18 March 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr O Stichter, solicitor
Otto Stichter & Associates

RESPONDENT
Mr P Jackson, solicitor
Pikes Lawyers

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

MOORE SC

18 March 2009

11187 of 2008 R & M La Tella v Ashfield Council

JUDGMENT

Introduction

1. COMMISSIONER: Yeo Street, Ashfield is approximately 100 m long. It has a dogleg in the middle – effectively breaking its streetscape into two separate components. The longer section is some 60 m in length and runs north-south whilst the shorter, at the southern end of the longer portion, runs east-west. The original housing in the street was developed between the first and second World Wars and comprised, originally, predominantly Californian bungalows.
   
2. 1 Yeo Street, the site that is the subject of the present appeal, is located at the western end of the east-west running section of Yeo Street. It has an area of ~ 533 sq m. The site has, presently, a significantly modified one of the surviving Californian bungalows located on it. The application proposes the demolition of the existing house and the erection of a two-storey dwelling in its place. The site is zoned Residential 2(a) and the proposal is permitted with development consent. The council raises no objection to the demolition of the existing dwelling.
   
3. A shared driveway runs between the house on the site and its immediate neighbour to the east. This driveway is located across the boundary with each of these two dwellings having a right of carriageway, in conventional terms, over the portion of the driveway located on the other property. The driveway provides vehicle access for garaging at the rear of each of the existing houses.
   
4. In this section of Yeo Street, although some modification has taken place to the original Californian bungalows (for example, a front veranda area on the house second to the east of the site – 5 Yeo Street – has been enclosed with glass louvres), the house structures and their presentation to the streetscape remain largely unmodified. These houses are certainly highly visually coherent.
   
5. However, directly opposite the site, a brick garage has been erected in the front setback of one of these largely unmodified Californian bungalows and, further to the east on the opposite side of the street, an open carport has been erected in the front setback. In this section in Yeo Street, toward the dogleg and on the same side as the site, a pair of attached two-storey dwellings has been erected with garaging in their lower facades.
   
6. The applicants have had prepared a streetscape view of the southern side of Yeo Street to show the relationship of their proposal to the existing dwellings. That diagram is reproduced showing their proposed dwelling as the second from the right below:
   

[<img src="/lecjudgments/2009nswlec.nsf/files/11187_of_2008_par6.jpg/$file/11187_of_2008_par6.jpg" alt="Par 6">]

The hearing process

7. The matter commenced as a conciliation conference pursuant to s 34(3) of the Land and Environment Act 1979 and, when it was obvious no agreement was possible to be reached, I terminated the conference. The parties then invited me to determine the matter pursuant to s 34(4)(b). What was said during the conciliation phase was carried forward by agreement of the parties pursuant to s 34(12).
   

The general issues

8. I inspected the site with the representatives of the parties and with those providing expert advice to them. During the course of the site inspection, I heard informal evidence from a number of resident objectors who are concerned about a range of aspects of the proposal. Those objections, for the most part, are same objections that are raised by the council, namely:
   

the bulk and scale of the proposal;

the inappropriateness of the overall presentation of the built form in the streetscape; and

the unacceptability location of the garaging at the front of the building.

9. As a consequence of the location of the garaging, the council also raises the question of the landscaping of the front of the property and the extent of hardstand area that will be located in it. This arises because of the necessity to retain the driveway along the existing right of carriageway to provide access into the rear of the adjacent property coupled with the proposal by the applicant to construct a new paved driveway and footpath crossing to access the proposed garage.
   
10. The proportion of the site available for landscaping is compliant with the requirements of the table of minimum landscaping percentages set out in Part 15 cl 2.7.1 of the Ashfield Development Control Plan 2007 (the DCP) as 51.4% of the site will be available for landscaping (50% being required). As a result, however, of the proposed new driveway and the driveway along the existing right of carriageway, the council says that Part 15 cll 3.11 and 4.5 of the DCP are not satisfied.
    

Impacts on 3 Yeo Street

11. In addition to these matters raised by the council and the resident objectors, a number of specific matters were raised by the owners of the property immediately to the east and by its long-term tenants. A number of these issues were resolved by the applicants accepting appropriate conditions during the conciliation phase of the proceedings and continuing that agreement when the conciliation phase was terminated and the matter proceeded to determination.
    
12. Thus, it is convenient, first, to deal with a number of matters that were resolved during the course of the conciliation phase of these proceedings (the parties having agreed these could be carried forward into this determination stage).
    
13. First, the applicants agreed to accept a condition that no work would be carried out which would obstruct or be carried out on the right of carriageway so that vehicle access to the adjacent property to the east would be maintained at all times. The applicants also accepted a condition for the preparation of a dilapidation report for that element of the concrete driveway along the right of carriageway that is located on the neighbouring property.
    
14. The unresolved issues that were raised concerning 3 Yeo Street were:
    

overshadowing of the kitchen and dining room windows;

overshadowing of the private open space to the rear;

overlooking from the upper storey windows of the proposed dwelling; and

presentation of the bulk and scale of the proposal, not in a streetscape context, but in the sense of dominating the single-storey building at 3 Yeo Street.

15. The applicants also agreed to conditions requiring specification of sill heights and obscure glazing for windows at the upper level which faced 3 Yeo Street. The council accepts that this is the appropriate privacy response. I am also satisfied that these conditions adequately address such privacy concerns as are expressed by the owners and tenants of 3 Yeo Street.
    
16. Privacy impacts on 3 Yeo Street having, I accept, been satisfactorily resolved, these concerns expressed by the owners and the tenants cannot provide any basis for refusal of the application or could these concerns contribute to warranting refusal.
    
17. The council accepts that a two-storey house can be constructed on the site and accepts that the upper level setback from the boundary to the east complies with the council’s planning controls.
    
18. Suggestions by Mr Moore, the council's heritage expert, that the eastern wall height and the overall ridge height should be lowered would result in a lessening of the impact on solar access to 3 Yeo Street.
    
19. However, these proposals by Mr Moore were made on the basis of heritage design for the site in a streetscape and bulk and scale context. The council did not press these changes for any reason relating to solar access for 3 Yeo Street. It is the council's position that the relevant planning controls for solar access to the neighbouring property are met.
    
20. Having considered the material provided to me (being the relevant planning controls, the applicants’ plans and the applicants’ shadow diagrams), I am satisfied that, although there will be an impact on the sunlight to the adjoining property at 3 Yeo Street, this reduction does not render the proposal non-compliant. Therefore this complaint does not provide any basis to refuse the application nor does it make any contribution to warranting refusal of the application.
    
21. It is clear that the bulk and scale of the proposal, when viewed from the neighbouring property varies significantly from that which is currently erected. As has been conceded by the council, a two-storey dwelling house is acceptable and the setbacks are entirely compliant at the ground floor and first floor levels.
    
22. Indeed, the presence of the right of carriageway ensures that the setback is, in fact, somewhat greater than that which might otherwise have been permitted had the driveway not been present. As a consequence, there is no basis to refuse the application or to contribute to other reasons for refusal of the application as a consequence of the presentation of the proposal to the adjacent property.
    

The proposed Ambleside Conservation Area

23. The council submits, through its solicitor, Mr Jackson, that in addition to the broad planning considerations arising these provisions, I should also have regard to the fact that there has been a heritage report prepared for the council which recommends that Yeo Street should be included in a proposed Ambleside Conservation Area to be listed a heritage conservation area in the council's foreshadowed new Ashfield Local Environmental Plan – a plan which is to be prepared in the form of the new LEP template. However, as the incorporation of the Ambleside Conservation Area into the new Local Environmental Plan is neither imminent nor certain, as properly conceded by Mr Jackson, I do not consider that this study and its recommendation raises the appropriateness of the present proposed building design in a streetscape context to any higher level of concern than that which already arises from the provisions of the DCP.
    

The role of the DCP

24. As to the emphasis I should give to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.
    
25. However, if a proposal does not meet the DCP’s requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Environmental Planning and Assessment Act 1979.
    

Bulk and scale

26. The relevant provisions of the DCP concerning design and streetscape issues are in the following terms:
    

3.0 Aesthetics

The aesthetic design principle – what is it?

3.1 Aesthetics considerations are those associated with the perception of desirable visual properties, including scale. High quality aesthetics require an acceptable standard of composition of building elements, materials and colours, including relationships with the context of the proposal.

Although the matter of preference for aesthetics, or architectural style, is largely subjective, there are two main principles that can be applied in the determining satisfactory visual qualities, which are:

(a) being sympathetic to context, and

(b) having a high standard of architectural composition.

The following clauses indicate some of the ways such principles may be interpreted in the process of evaluating proposals.

What is “sympathetic” development?

A “sympathetic” aesthetic quality is one having visual relationships that are appropriate, sensitive, benign and aesthetically pleasing, implying concordance with the context of a building or element. Sympathy may be achieved by:

a) imitating the style or form of that context,

b) employing keys or motifs evident in the context, or

c) designing in a different yet appropriate style, if the houses' siting, bulk, form, scale character, colour texture and material are similar to the existing fabric, or, by offering skilful contrast, as in a design which includes present-day materials and compositional forms and has a high standard of architectural composition.

.......................................

The uniformity or diversity of architectural styles often comprise the most readily discernible character of the context, whether it be a streetscape or an individual building; and that character forms an important basis for assessing proposals. An appropriate proposal will normally take architectural cues from that context. In the case of a new house these cues can usually be perceived in the streetscape and its components.

27. The relevant provisions of the DCP do not require a new dwelling to mimic the design of existing dwellings in the street. It is for this reason that, in this section of Yeo Street, the council accepts that a two-storey dwelling would be appropriate.
    
28. However, the DCP proposes that an appropriate design would take architectural cues from the streetscape within which the new dwelling is to be erected and be sympathetic with the elements contained within that streetscape.
    
29. As earlier discussed, the streetscape of this portion of Yeo Street is one largely characterised by elements without garage doors and certainly without the upper level balcony structure proposed in the present design. In addition, the portico treatment differs from the general nature of entrances and facades in the immediate streetscape.
    
30. The significant elements, to which the council takes exception in a streetscape context, are the portico at ground level and the balcony accessed from the master bedroom at the upper-level. The applicants’ designer said that this balcony is consistent with the front verandas in the other California bungalow style dwellings in the immediate vicinity. On the other hand, the council’s planner opined that this construction, at the upper-level, is out of character and is significantly intrusive into the streetscape. The council submits that there is no reason why, if there is to be such a structure, it cannot be at the ground level.
    
31. The applicants’ designer indicated that the paved area at ground level could be enclosed by glass sliding doors in response – thus having the enclosed built form brought forward at this point. However, even if this were to be done, I consider that the upper level balcony would remain a significantly visible and alien element in the streetscape.
    
32. Although the garage door strictly complies with being set back behind the building line of the proposal, this compliance is only achieved by the insertion of a portico element in the design and by the recessing of the doorway to significantly beyond the leading edge of the gable structure to the roof above the garage. Although technically compliant, this compliance is only achieved by the utilisation of structures that are, in themselves, entirely out of character with the Californian bungalows in the vicinity.
    
33. Coupled this is with the incongruous extent of the front setback hardstand area that is necessitated by the requirement to have a separate driveway consequent on the inability of the design to use the existing shared driveway to access the garage. This incongruity is a separate impact to that leading to non-compliance with landscaping requirements.
    
34. As a consequence, the totality of the proposal is more than sufficiently discordant with the aesthetic design aspirations of the DCP to warrant its refusal.
    

Garaging at the front of the dwelling

35. The DCP provides for garaging for new dwellings in the residential area in the following terms:
    

Garage and carport requirements

3.7 Garages and Carports must be setback a minimum of 1 metre from the house’s front building line and must be visually subordinate to the scale, form and style of the house. The design of a garage or carport must also respect the scale and character of the streetscape.

36. The garage proposed is one which is set back behind the front edge of the portico structure at a distance of ~ 3.1 m and a distance of ~ 1.6 m to the rear of the front door. Thus the design of the garage entrance now complies with the setback provisions of the DCP.
    
37. However, in front of the garage door, with a roofline at the same front setback as that of the upper level balcony, is a covered area at least 1.55 m in front of the garage door. This design leaves a considerable covered space of ~ 5.2 sq m between the door of the garage and the gable end of the structure. The covering roof is supported by a substantial pillar in its north-eastern corner. The base of this pillar is 470 mm by 470 mm.
    
38. A copy of the relevant portion of the ground floor is reproduced below:
    

[<img src="/lecjudgments/2009nswlec.nsf/files/11187_of_2008_par38.jpg/$file/11187_of_2008_par38.jpg" alt="Par 38">]

39. Although I do not have any vehicle path template evidence concerning the swept paths of 85th percentile vehicles which would be used to assess access to this garage, if the driveway were to be moved so as to utilise the present footpath crossing and part of the existing right of carriageway driveway, Mr Fryar, the council’s planner, expressed reservations as to whether such access would be possible because of the location of the pillar.
    
40. Although altering the access in this fashion would resolve the matters raised by the council concerning the extent of the hardstand area in the front setback and landscape non-compliances, I am not satisfied that there is any proper evidentiary basis upon which I could require such change to the plans or if it would be physically possible if I were to do so. Although such an operation might permit alteration to the landscaping which would have the effect of softening part of the presentation of the corrosion to the streetscape, I am not satisfied that, even if this were possible, such softening would be sufficient to offset the adverse streetscape presentation discussed earlier.
    
41. There is also no countervailing reason that would provide a basis, for example, of not utilising the shared driveway, in a more sympathetic design, to provide garaging at the rear of the property consistent with the present position of garaging on the site.
    
42. This garaging and covered area, itself, provides a discordant design element that is also not sympathetic with or consistent with the streetscape and its architectural cues. Although, to some extent, this open space in front of the garage has a limited fit with a carport-style of structure, its gable end, tiled roof and pillar supporting column (on the eastern side) with it being married into elements of the portico structure to the west is also out of character and discordant with the aesthetic thematic elements of this section of the streetscape of Yeo Street.
    
43. Again, whilst not, itself, warranting refusal, this element is also sufficiently discordant to contributing significantly to warranting refusal.
    

Landscaping

44. The DCP requires, in Part 15 cl 4.5, that:
    

Front Gardens shall be of a configuration which will provide sufficient soil area for ground cover vegetation and trees, and have the location of pathways and driveways and their treatments in accordance with Clause 3.11.

45. Clause 3.11 reads, relevantly:
    

The front garden area shall contain a minimum amount of hard paved areas, with any vehicular driveway being no wider than 3 metres.

46. The width of the proposed new driveway is numerically compliant.
    
47. However, the addition of the proposed new hardstand driveway access means that additional and unnecessary hardstand is required and, as a consequence, this area is removed from the available area for front landscaping. The fact that the proposed new driveway is strictly numerically compliant should, however, be viewed with the ordinary planning expectation for a site of this nature that there would only be one driveway rather than 1.5 (this being the necessary context of the requirement to retain the driveway on the right of carriageway to serve the neighbouring property). This is contrary to the objective in cl 3.11 of minimising the hardstand areas in front setbacks and is solely as a result of the garaging proposed. There is no valid reason, as discussed earlier, why this is necessary.
    
48. When this is coupled with the fact that limited landscaping will be possible in the space between the existing shared driveway and the proposed new driveway, it means that, in the context of the provisions of the DCP, the landscape treatment to the front of the dwelling will not be contextually appropriate.
    
49. Whilst this landscape deficiency would not, in itself, warrant refusal, it is a further indicator of the unsympathetic design of the present proposal and contributes to the reasons for its refusal.
    

An alternative design outcome

50. During the course the hearing, I asked the parties whether, if I were to conclude that the proposal were otherwise acceptable but that the upper level veranda should be deleted and the garaging be moved to the rear (with the space thus freed being given over to living space), this could be accommodated within the present application or whether an amended application would be required.
    
51. Mr Jackson put the position for the council that such changes could not be accommodated within the present application and a fresh application would be required.
    
52. Mr Stichter, solicitor for the applicant, was instructed that, whether or not changes of such a nature could be accommodated within the present application, the applicants did not wish to be given a consent on that basis and would prefer to have the application refused.
    
53. Although the applicants’ designer raised the question of whether these issues could be addressed by moving the garage from the eastern side of the facade to the western side of the facade, I indicated that I was not prepared to consider such an alteration as I did not believe that that could be accommodated within the present application.
    
54. The hearing, therefore, proceeded on the basis of whether or not of the present application was acceptable.
    

Unreasonable restrictions on development potential?

55. I have also considered whether or not the impacts, when assessed against the DCP, are outweighed by some other development restrictions which would cause my rejection of the present proposal to constitute an unreasonable limitation on achieving appropriate acceptable development on the site.
    
56. There is nothing with respect to either the dimensions or depths of the allotment that place any restrictions on its achievement of reasonable development potential in a fashion that is consistent with the aspirations of the DCP.
    
57. I accept that the existing shared driveway places a restrictive design element in considering what could be built but not such, in my view, to be insurmountable whilst still providing the degree of amenity sought by the applicants.
    
58. Despite the refusal of the owner of the adjacent property to the east to consider extending the right of carriageway over the adjacent property to permit garaging to be moved further to the south at the rear of any proposal, I do not consider that this aesthetically or practically poses any insurmountable difficulty for the applicants. Indeed, the extent and location of the right of carriageway were undoubtedly matters of which the applicants were on notice at the time of the purchase of the property.
    
59. Finally, the depth of the allotment is sufficiently generous that, despite its northern frontage orientation, there is no significant solar access impact that would warrant setting aside the provisions of the DCP.
    

Conclusion

60. I consider all three elements underpinning refusal:
    

The broad inappropriateness of the overall design of the upper levels in a streetscape context;

The inadequacy of the landscape space available in the front setback as a consequence of the need for the second hardstand entrance; and

The unsympathetic design elements of the garage door and its gabled structure toward the street (coupled with the alien portico treatment)

constitute, between them, valid reasons for refusal. The first is sufficient in its own right, whilst the second and third, in combination, are also sufficient to warrant refusal when taken together.

61. As a consequence, I have concluded that, even if the design at the first floor were in some fashion significantly modified, this would not cure the defects of those ground floor matters contained in the second and third reasons for refusal and thus the proposal should still be rejected when assessed against the DCP.
    
62. As the proposal is fundamentally inconsistent with the provisions of the DCP in a fashion warranting refusal of one ground by itself, and, separately, on two additional cumulative grounds with no countervailing development imperatives requiring the DCP to be set aside, the inevitable result is that the appeal must be refused and the development proposal rejected.
    
63. The orders of the Court, therefore, are:
    

The appeal is dismissed;

Development application 10.2008.152 for the demolition of an existing dwelling and the erection of a new dwelling at 1 Yeo Street, Ashfield is determined by the refusal of development consent; and

The exhibits are returned.

Tim Moore
Senior Commissioner