Dusan P and Anor v Leichhardt Council

AGL v North Sydney Council Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported CASES CITED: Studio v Waverley Council [2004] NSWLEC 91 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Wehbe v Pittwater Council (2007) NSWLEC 827 Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001

APPLICANT: Mr A Hudson, solicitor SOLICITORS: Wilshire Webb Staunton Beattie Lawyers LEGAL REPRESENTATIVES:

RESPONDENT: Ms R McCulloch, solicitor SOLICITORS: Pike Pike and Fenwick

Contents The land 1 Relevant planning controls 2 The proposal and its history 3 Notification 3 The council's decision 3 The hearing 3 The contentions 4 The evidence and findings 4 Excessive floor space ratio 4 Breach of landscape area requirement 9 Orders 10

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11093 of 2007 - Paul Dusan and Helen Ewen v Leichhardt Council

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Leichhardt Council (the council) to in effect refuse a development application to alter and add to an existing dwelling at Lot 4, DP 300082, being No 7 William Street, Annandale. The council had approved the proposal but set conditions that required amongst other things, the deletion of the proposed first floor. That condition negated the consent.

2 I visited the land in company with the parties on the morning of the hearing and heard from local residents.

3 I have concluded that the proposal should be refused consent, as the proposal would be likely to result in unreasonably diminishing the district views from Nos 15 and 17 Rose Street. The proposal would also be an overdevelopment of the land and as a consequence would result in other adverse environmental impacts.

The land 4 The land is situated on the eastern side of William Street, Annandale, about 40m south of the intersection of William and Rose Streets. The land is rectangular in plan shape and has northern and southern boundaries of 21.005m; western and eastern boundaries of 11.615m and 11.735m respectively, and an area of some 245.2m2.

5 Erected on the land is a single-storey rendered brick dwelling with a floor space ratio (FSR) of 0.56:1 or a gross floor area (GFA) of some 130.62m2, being 16.5m2 less than the allowable FSR of 0.6:1 or a GFA of 147.12m2. There is a cross fall on the land of around 2.54m and the ground floor of the existing dwelling is between 0.6m and 2.3m above the eastern footpath in William Street.

6 Nearby dwellings are a mix of single detached and semi-detached single-storey and single-storey plus attic dwellings with some two-storey dwellings interspersed.

7 To the north, there is No 5 William Street, which has a ground floor level around 2m below the ground floor level of No 7 William Street. The rear two-storey first floor extension of this dwelling rises only slightly above the top of the rear skillion roof on the subject land.

8 To the east there are three attached single-storey and two-storey dwellings with their courtyards facing towards the land. These courtyards are at a level below the garden level of the subject land and thus are potentially overlooked from a rear first floor extension on the subject land.

9 Abutting to the south is an east/west right of way about 1.065m wide. Further to the south is a row of two-storey attached dwellings at Nos 13, 15, 17 and 19 Rose Street with their rear facades presented towards the subject land. Most of the living areas of these dwellings are at around street level in Rose Street. These dwellings have elevated decks off their living rooms slightly below the skillion roof level of the subject property and from these decks and living rooms district views to the north and north east are provided over the subject land. These district views include the Glebe Island grain silos, Rozelle Bay, Anzac Bridge, Bicentennial Park and the railway viaduct against the city skyline.

10 To the west opposite William Street are two-storey and single-storey freestanding dwellings at Nos 2, 4 and 6 William Street. Relevant planning controls 11 Under the provisions of the Leichhardt Local Environmental Plan 2000 , (LLEP) the land is zoned Residential and the proposal is permissible with consent under cl 18(3), LLEP. Under cl 19(2) LLEP the allowable FSR is 0.6:1 and the minimum landscaped area under cl 19(3) LLEP is 40%.

12 The land is within a conservation area and must comply with cl 16(8) LLEP.

13 As the proposal does not comply with the allowable FSR or the landscaped area standards, the applicant has submitted SEPP1 objections. The proposal and its history 14 Development application No D/2005/415 was lodged with the respondent council on 6 September 2005 to alter and add to the existing dwelling. James Stockwell, architect prepared amended plans dated variously 5 and 28 February 2008; 6 and 17 March 2008, [Note: Exhibit A]. The original proposal also included a garage off William Street, but in the later amended plans this garage was deleted.

15 The development application was approved by the council but included a condition that required the deletion of the first floor addition that in effect resulted in a refusal of the application. Notification 16 The application was notified to nearby owners and occupants and the council received nine (9) objections. The council's decision 17 The council approved the development application on 5 June 2007 subject to conditions. Condition 2(a) required design changes that deleted the first floor addition and the proposed garage. The reason for this condition was to reduce the scale and bulk of the proposal. The hearing 18 The appeal was filed on 28 October 2007.

19 At the hearing on 19 March 2008, the Court heard evidence on behalf of the respondent council from: - Mr K Hawke, resident of No 5 William Street, Annandale; - Ms S Mulveney, resident of No 17 William Street, Annandale; - Mr R Fountain, resident of No 19 Rose Street, Annandale; - Ms P Lynch, resident of No 15 Rose Street, Annandale; - Ms M McNulty, resident of No 13 Rose Street, Annandale; - Ms Kerry Boyne and Mr C Stafford, residents of No 302 Nelson Street, and - Ms M D Laidlaw, consultant town planner.

20 On behalf of the applicant Mr N Juradowitch, consultant town planner, gave evidence. The contentions 21 On 6 March 2008 the council filed a statement of contentions: - excessive floor space ratio; - breach of landscape area requirement; - non-compliance with the LLEP and the Development Control Plan 2000, (DCP2000); - unreasonable adverse impact on the aspect and district views from properties in Rose Street. - unreasonable impact on visual and acoustic privacy to nearby properties; - unacceptable overshadowing of properties to the south.

22 The salient issue was the loss of district views from the living rooms and decks of the Rose Street properties, especially No 17 Rose Street. The evidence and findings Excessive floor space ratio 23 The applicant calculated the FSR of the amended proposal before the Court would be at a FSR of 0.797:1 or 195.4m2 of gross floor area, (GFA). The existing dwelling has a GFA of some 130.62m2. [Mr Juradowitch calculated the existing floor area to be slightly less at 129m2.] Thus the additional gross floor area sought in the proposed alterations and additions would be around 64.78m2. [Mr Juradowitch calculated this figure to be slightly larger with the enlargement of the existing floor space by 66.5m2. [Note: Exhibit B, p 5]. Of this area around 10m2, would be included on the ground floor in the extension by 1m of the living area to the rear or east. Thus, the first floor addition includes 54.78m2 GFA if the area of the stair is counted once. The excess GFA over the allowable GFA of 147.12m2 on the first floor would be around 48.78m2.

24 There is also a new balcony on the first floor that is not counted in the FSR of 1.8m x 10m or around 18m2.

25 Even if the proposed first floor were contained under the existing roof, the GFA would exceed the allowable. The habitable floor area that could be contained under the existing roof with a floor to ceiling height in excess of 2.0m would be 2m x 10m or say 20m2 and would be in excess of the allowable GFA by around 14m2. By including the area under the raked ceiling with a minimum ceiling height of 1.4m at the sides of the attic as shown on the section in Drawing No A 04B, dated 5 February 2008, would yield a floor area of 10m x 4m = 40m2. This would give a FSR of around 0.73:1 or a GFA of around 181.12m2.

26 Mr Juradowitch stated that, [Note: p 6 Exhibit B] [The] Council has approved additions to a number of dwellings in the locality under the current planning controls, which increase the FSR well above the 0.6:1 FSR standard for Annandale. 27 To illustrate his point, he then cited examples including a FSR of 0.97:1 for No 17 Rose Street; 0.8:1 for No 21 Rose Street; 0.86:1 for No 13 Rose Street; 0.91:1 for No 308 Nelson Street. Mr Juradowitch continued, [Note: Exhibit B p 7]

The context of the site and the Council's demonstrated flexibility in application of the FSR standard should be given considerable weight in the assessment of reasonableness of the proposed additions and resulting FSR. In a recent decision of Wehbe v Pittwater Council (2007) NSWLEC 827, Chief Justice Preston set out 5 ways in which an objection under SEPP1 may be assessed… Two of the points identified by the Chief Justice relating to consistency of application of the relevant standard and the reasonableness of the standard in a site's context are of particular relevance to the proposal for No 7 William Street. Where a development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard, the Chief Justice considered that compliance with the standard would be unreasonable. The Council through its numerous approvals of FSR's sometimes as much as 50% greater than the applicable FSR standard has clearly acknowledged that the FSR standard in LEP 2000 is no longer appropriate in terms of providing a reasonable level of floor space on smaller lots (generally less than 300m2), commensurate with modern lifestyles. 28 On the site inspection, I satisfied myself as to the impacts of the proposal. I was assisted in this task by the applicant's erection of templates on the roof of the existing dwelling at No 7 William Street showing the extent of the proposed first floor addition. The accepted evidence was that most adverse impact would be on the view from No 17 Rose Street. This view is to the north and north east and takes in the district views of the old Glebe Island grain silos, Rozelle Bay, Anzac Bridge, Bicentennial Park and the railway viaduct against the city skyline. The view from this property of the water of Rozelle Bay, some of the railway viaduct, and Anzac Bridge and most of the grain silos would be lost. The extent of view loss would vary when sitting and standing on different parts of the balcony and from inside the dwelling. There would also be a loss of view from No 15 Rose Street but not to the same extent as from No 17 Rose Street.

29 Ms Mulveney of No 17 Rose Street, gave evidence on site of her concerns. She said that although she had recently received approval of the council to alter and add to her dwelling she would move if the proposal were approved. She reiterated her partner's comments in a letter dated 6 March 2008, [Note: Exhibit 2, p 2 letter from Mr D Liu] that the view of the light rail viaduct and most of the Anzac Bridge view would be lost.

30 Ms Lynch of No 15 Rose Street, stated in her letter, [Note: Exhibit 2, p 9] and reinforced this on site that part views of the light rail and Rozelle Bay parklands would be lost.

31 I accept the evidence of the council that the district view loss is extensive and not 'minimal' as Mr Juradowitch contends. The view loss is from the main living areas of the dwelling at No 17 Rose Street and as such is more significant than from say bedrooms, [Note: Tenacity ]. This view loss would be unreasonable in the circumstances and as a result the application is refused.

32 There would be unreasonable adverse impact on the aspect and district views from other properties in Rose Street.

Abandonment of standards 33 In cross-examination Mr Juradowitch acknowledged that the abandonment of standards dealt with in AGL v North Sydney Council was unlike the situation here.

34 Nothing in the evidence would lead me to the conclusion that the council has abandoned its planning standards and in particular the FSR standard. It is a legitimate planning exercise under SEPP1 to assess each application on its merits and to sometimes permit development that exceeds the allowable standard notwithstanding that the underlying control is maintained.

35 I do not accept the evidence of Mr Juradowitch that the FSR standard in this case has been abandoned in the sense of AGL v North Sydney Council or of Wehbe .

Other environmental impacts 36 Also there is likely to be an unreasonable impact on visual and acoustic privacy of residents of nearby properties including those in Nelson and Rose Streets. This issue was not strongly pressed in the appeal and provided an extension of No 7 William Street is not excessive most would accept that some impact in this regard. However, the present application projects too far to the east as a result of the breach of FSR and in addition incorporates a generous balcony. Ms Laidlaw stressed in her evidence the need for impacts to be considered in a balanced way. I accept that evidence and reject the present application on the grounds of visual and acoustic privacy.

37 There would be some overshadowing of the gardens of the Rose Street properties to the south as a result of the projection of the proposal extensions above the roof line of No 7 William Street. It is that part of the proposal that casts the shade over these gardens that also exceeds the allowable FSR. This I consider to be unreasonable and I am satisfied that the application should fail on this count as well.

Alternative proposal 38 During the course of the hearing, I was asked by Mr Hudson to indicate what I would consider to be a reasonable alternative addition on the first floor of No 7 William Street should I not be persuaded by the applicant's evidence in the present case. I consider that alterations and additions that do not rise above the existing roof and perhaps yielding a FSR of around 0.73:1 and a gross floor area of around 181m2 would be the limit of development that would alter and add to the existing dwelling. This would allow for some residential accommodation to be added providing for a growing family. Two 'Velux' skylights or similar, might be fitted to the eastern face of the existing roof provided the slope of that roof is at around 45 degrees. Such skylights would enable the residents to open up a balcony to give access to the open air and to obtain views.

39 Such a design would maintain district views from the Rose Street properties, and would limit overshadowing to that which presently is experienced in the rear yards of the those same properties. It would ensure that overlooking of the Nelson and Rose Street properties would be limited. It would also limit visual and aural intrusion and would reduce the overlooking potential towards No 5 William Street.

SEPP1 objection 40 The SEPP1 objection cites a non-compliance of 48.5m2 that represents a total FSR of some 0.797:1. This calculation is consistent with the evidence.

41 Mr Juradowitch in the SEPP1 objection to FSR states that compliance with the standard of 0.6:1 FSR is unreasonable and unnecessary as the proposal, [Note: Exhibit C, p 4]: …achieves the objectives of the FSR standard without compromising… neighbour amenity and enables much needed increase in the number of bedrooms… so as to accommodate the needs of a growing family. The encroachment of the standard… is not excessive having regard to the numerous approvals that Council has issued for significant non-compliance with the FSR standing in the locality. 42 One of the objectives of the FSR standard cited by him is maintaining reasonable view sharing from neighbouring properties and he describes the view impact as "…minimal on middle and long distance views, including landmarks."

43 Ms Laidlaw differed with Mr Juradowitch on this aspect and stated that she considered the SEPP 1 objection to the FSR is not well-founded. She continued, [Note: Exhibit 4 pp 4-5]: The SEPP 1 objection does not address the objectives of the standard and relies on precedent arguably set by buildings approved prior to the current regime of planning controls under LEP 2000 and DCP 2000 and which present circumstances that are quite different to those presented by the subject property. In particular, while there is reliance on the fact that No 5 William Street has a first floor rear extension (apparently approved around 10 years ago and prior to the current LEP 2000 and DCP 2000), there is a failure to acknowledge that because No 5 is close to a floor level lower than No 7 [it] has negligible impact by way of views or bulk on its neighbours to the south and lesser impact to the properties to the east. The SEPP 1 objection has not answered a fundamental test relevant to this instrument, which is… 'why should the development not comply' nor (in accordance with draft amendments to SEPP 1) why it is said that a greater gross floor area represents a better environmental outcome. 44 Ms Laidlaw considered a reasonable level of accommodation could be achieved by a compliant and less bulky extension, providing satisfactory amenity consistent with the constraints of the site, and commensurately reduced impacts upon surrounding properties. She considered that the generously proportioned balcony and side screens exacerbates the bulk of the first floor extension.

45 Ms Laidlaw addressed the breach of the FSR under the planning principles of Super Studio v Waverley Council [2004] NSWLEC 91 and Tenacity Consulting v Warringah Council [2004] NSWLEC 140. Following Super Studio , "…the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of and necessity for the development that causes it." She noted not only the breach of the FSR but also the breach in the side setbacks of the first floor extension under the Leichhardt Development Control Plan 2000 , (DCP2000). She considered that the proposal would result in a "…generous level of accommodation for an inner city lot" and that the balcony exacerbates the impacts. She noted that the views that would be impacted upon were those from principal indoor and outdoor living areas consistent with Tenacity . She noted that from these areas in No 17 Rose Street and to a lesser extent from Noes 15 and 13 Rose Street the extension would block the district view both from a seated and standing viewpoint. 46 Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 - 26 set out the test for and SEPP1 objection. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

47 Firstly, the parties agree that the 0.6:1 FSR standard of cl 19(2) LLEP is a development standard.

48 Secondly, The underlying purpose of the standard is to control the building bulk so that new development is consistent with its context, in this case the William and Rose Streets area. By controlling bulk view sharing can result. In this case there would be inadequate view sharing based on the evidence of Ms Laidlaw.

49 Thirdly, compliance with the development standard would be consistent with the aims of the Policy and would not tend to hinder the objects of s 5(a)(i) and (ii) of the EPA Act.

50 Fourthly, compliance with the 0.6:1 FSR would not be unreasonable or unnecessary in the circumstances of the case. However, in the alternative, were the development to be contained under the existing roof over the front part of the dwelling at No 7 William Street, this allowable limit might be extended in the range of 0.73:1.

51 Fifthly, I agree with Ms Laidlaw that the SEPP1 objection in respect of the breach of the FSR controls is not well founded and is not upheld. Breach of landscape area requirement 52 An SEPP1 objection was also tendered to support the non-compliance with the requirements of cl 19(3) LLEP in respect of the minimum landscaped area for residential development. This standard requires a minimum of 40% of the site to be landscaped area and not occupied by any building. Ms Laidlaw calculated the minimum landscaped area if the proposal were to go ahead at 38.6% of the site area. Mr Juradowitch calculated this proposed landscaped area to be 39.396%. I accept that the proposal would provide a landscaped area around 39% or slightly less than that required by the standard.

53 The reduction in the landscaped area is as a result of the proposed 1m-extension to the ground floor living area and this should only be permitted if the reduction in area is justified from a planning viewpoint.

54 However, as the proposal fails for reason of the excessive FSR it is not necessary for me to consider this further reduction in landscaped area. I note that this issue was not pressed strongly by the council and were the first floor view sharing issues adequately addressed I suspect that the council would favourably consider the SEPP1 objection in respect of landscaped area.

55 For the above reasons, I accept the evidence of Ms Laidlaw that the proposed development is not reasonable, having regard to the breach of the FSR standard (Clause 19(2) LEP2000), the side setback control (Part B.1, DCP2000) and impacts on adjoining properties in terms of views, bulk, overshadowing and privacy, and the appeal is dismissed. Orders 56 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. Development application No D/2005/415 lodged with the respondent council on 6 September 2005 to alter and add to the existing dwelling at Lot 4, DP 300082, being No 7 William Street, Annandale, is refused development consent.

3. The exhibits except for Exhibits A and 6 are returned

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