Colquhoun v Leichhardt Municipal Council

CASES CITED: Hooker Corporation Pty Limited v Hornsby Council NSWLEC (2 June 1986 unreported); Winton Properties Group Limited v North Sydney Council [2001] NSWLEC 46

APPLICANT Mr T Howard, barrister SOLICITORS LEGAL REPRESENTATIVES: Colquhoun & Colquhoun RESPONDENT Ms J Reid, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10976 of 2005 Peter and Margaret Colquhoun v Leichhardt Municipal Council

JUDGMENT 1 This is an appeal against the deemed refusal by Leichhardt Municipal Council (the council) of a development application for alterations and additions at 588 Darling Street, Rozelle (the site). The site and its context 2 The site has a frontage to Darling Street of 9.695 m and a side boundary along Bruce Street of 23.97 m, with a site area of 233.1 sq m. It is developed with a two storey Victorian building fronting Darling Street with a single storey extension. There is parking at the rear of the site and two existing trees.

3 The adjoining site to the north (586 Darling Street) has a two storey commercial building. A driveway servicing this property is located on the southern side of the building adjacent to the site.

4 To the south, on the opposite side of Bruce Street, is a single storey commercial building with an open area facing Bruce Street (600 Darling Street). The adjoining site to the east (33 Bruce Street) accommodates a single storey commercial building. Planning controls 5 The site is zoned Business under Leichhardt Local Environmental Plan 2000 (LEP 2000). Offices are permissible with consent pursuant to cl 21(3) of LEP 2000. Dwellings located wholly above street level are permissible with consent under 23(1)(b) of LEP 2000.

6 Clause 23(1)(b) permits a maximum floor space ratio (FSR) of 1.5:1 for mixed residential and other development on land within the business zone. Non-residential development can achieve a maximum FSR of 1:1 within the Business zone.

7 The proposal has an FSR of 1.67:1 based on the applicant's figures and 1.7:1 based on council's assessment. This equates to an exceedence of between about 40 sq m and 49 sq m. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1) to the FSR standard.

8 The site is within the Balmain Conservation Area. Clause 15 of LEP 2000 provides objectives for conservation and cl 16(8) provides that consent must not be granted unless the consent authority has made an assessment of the effect on the heritage significance of the conservation area.

9 The site is within Rozelle Commercial Neighbourhood under Leichhardt Development Control Plan 2000 (DCP 2000).

10 The existing character of the neighbourhood is relevantly described in DCP 2000 as:

The development along Darling Street and Victoria Road has a two storey scale with a mix of traditional shop top housing, single purpose commercial buildings and more recent mixed development. The scale tends to increase to three storeys at key intersections.

Northeast of Victoria Road, the scale increases with buildings having tall parapets and comprising a 3 and 4 storey scale, adding to the imposing church buildings and sandstone school buildings in this locality. Setbacks for commercial sites are generally nil…. 11 The desired future character for built form in DCP 2000 seeks to:

maintain the predominant bulk, scale and siting of buildings consistent with adjoining development and the neighbourhood generally. The evidence 12 The hearing was held on site and the Court heard evidence from Ms D Laidlaw, the Court-appointed planning expert. In response to Ms Laidlaw's preliminary report, the applicant prepared amended plans which are the subject of the appeal. Ms Laidlaw had reviewed these plans and prepared a supplementary statement of evidence. Ms Laidlaw recognised that the amended plans were an improvement but maintained her concerns about the bulk and scale of the proposal, and its impact or consistency with the character of the area. This was the key issue in dispute between the parties.

13 The parties agreed that the existing building is a contributory building within the conservation area but drew different conclusions as to whether the proposed additions were appropriate to the building and to the character of the area.

14 In Ms Laidlaw's opinion, the predominant scale of Darling Street is two storeys with a limited number of single and three storey developments. She recognised that the scale of a traditional two storey building could achieve a contemporary three storey development. However, Ms Laidlaw considered that the proposal would be visible from certain vantage points along Darling Street and Bruce Street, and that even though the second floor was set back from Bruce Street it would read as a three storey building.

15 Ms Laidlaw considered that the height and bulk of the building, which covers the whole site, was not deferential to the existing building. She stated that the traditional form of development was for buildings to step down in height from the Darling Street frontage, except if located on prominent corner sites.

16 In Ms Laidlaw's opinion the combined effect of the height, bulk and site coverage was not consistent with that of adjoining development and the neighbourhood generally and did not achieve the desired future character sought by DCP 2000. She considered this to be unacceptable, particularly given the non-compliance with the FSR control in LEP 2000.

17 Mr Howard's submission, for the applicant, was that the proposal would fit into the existing character of the street. Even though buildings were two storeys, their overall height was more consistent with three storey development. The existing character statement in DCP 2000 recognises that buildings have tall parapets and a three and four storey scale. He stated that there are examples of buildings with recent additions and that the character of the area would not be changed by this development and it would clearly not be the bulkiest development in the area.

18 In relation to the non-compliance with the FSR objective, the parties held different opinions as to whether the objectives of the standard were limited to the employment objectives of cl 20 of Pt 5 of LEP 2000, or whether the housing objectives of cl 17 of Pt 4 of LEP 2000 were also applicable.

19 Ms Reid, for council, submitted that both clauses related to the use of development and not to the particular zone, whereas Mr Howard's submission was that Pt 4 and Pt 5 are self-contained and that only Pt 5 relates to this commercial development. He stated that the objectives of the standard therefore were limited to the intensity of the development and that issues of bulk and scale are part of the merit assessment, not part of the consideration of the SEPP 1 objection. 20 As stated by Cripps J in Hooker Corporation Pty Limited v Hornsby Council NSWLEC (2 June 1986 unreported) and confirmed by Lloyd J in Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46,

generally in order to maintain an objection that compliance with the standard is unreasonable or unnecessary, it is first necessary to discern the underlying objective or purpose of the standard. 21 In Ms Laidlaw's opinion the objectives in both cl 17 and cl 20 are relevant to the proposal as it is for both housing and employment uses.

22 Mr Laidlaw considered that the normal planning purpose of an FSR standard is to control bulk, scale and intensity. In her opinion the bulk and scale of the proposal are not consistent with the character of the area and there are no particular circumstances of this site or design that justify a variation to the FSR standard. Ms Laidlaw did not consider the SEPP 1 objection to be well founded or to demonstrate that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Findings

23 I accept Ms Laidlaw's opinion that the proposal is inconsistent with the predominant character of the surrounding locality and its relationship to the existing building. The proposal effectively covers the whole site with a three storey form of development. Devices such as the courtyard, the setback of the residential floor and the use of different materials and roof forms assist in breaking up the building. However, overall the proposal is not deferential to the existing building or consistent with the bulk and scale and siting of buildings in the area.

24 The two storey part of the existing building, which is contributory in the conservation area, will occupy a relatively small section of the site. The new stair is added to this part of the building. Generally the new development is below the ridge height of the existing building, but exceeds the parapet height, particularly the recessed development around the courtyard.

25 The proposal will be visible from parts of Darling Street and Bruce Street, and the overall appearance will be of a three storey building covering the whole site. This block form of development is more characteristic of a prominent corner site. The proposal will not be the bulkiest development in the area but will be bulky for its site, particularly in relation to the existing building. This is not characteristic of development in the area where the highest part and dominant form of the building generally fronts Darling Street and reduces in height to the rear.

26 The bulk of the building also results in unacceptable elements of the proposal, such as part of the first floor cantilevers over the existing single storey building on its northern elevation and projects out from the alignment of the existing building. This will add to the appearance of bulk when viewed down the access way to the adjoining property.

27 The windows to the offices on the first floor are built to the north and east boundaries. In the event of future development of these adjoining sites, this would result in the windows being blocked up. While there is no BCA requirement for natural light to commercial space, it clearly provides a lower standard of amenity and is unnecessary given that the building exceeds the FSR for the site and could be designed to be set back at its upper levels from these boundaries.

28 While the three storey component may be appropriate for part of the site, the relationship of any extension to the existing building would need to be carefully considered to ensure a degree of separation and that the existing building retains its clear identity. This is not achieved by the proposal. The bulk and scale of the proposal is not consistent with the character of the existing building or with the character of the area, and on this basis the application must fail.

29 In relation to the SEPP 1 objection, I accept Ms Laidlaw's evidence that the purpose of the standard is not limited to the objectives of cl 20 of LEP 2000 and that for the reasons given above it is not unreasonable or unnecessary to comply with the FSR standard. As the application fails on these aspects, I have not addressed the other issues in the case.

Orders 30 The orders of the Court are : 1. The appeal is dismissed. 2. The development application for alterations and additions to 588 Darling Street, Rozelle, is refused. 3. The exhibits except Exhibits 1 and 2 may be returned.

      Annelise Tuor
      Commissioner of the Court
      rjs

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