Ms R McCulloch (Respondent)
Solicitors
Hunt & Hunt (Applicant)
[2]
Pikes & Verekers Lawyers (Respondent)
File Number(s): 10017 of 2014
[3]
Judgment
Background
1This appeal was lodged against council's deemed refusal of a development application for the construction of a detached garage at the rear of 136 Darling Street, Balmain. The proposed access to the garage is via a relatively steep unformed road reserve (Killeen Street) located adjacent to the western side boundary of the lot.
2The issues identified for the appeal concern:
Permissibility and suitability of the proposed access way in terms of traffic engineering and safety considerations.
Consistency with the Heritage Conservation area and Desired Future Character for the Darling Street East precinct
Impact on neighbouring properties.
Impact on open space areas.
The proposal
3The proposed garage has external dimensions of 7.37m wide x 7.37m long. It incorporates a 6m diameter vehicle turntable so that vehicles can enter and leave the property in a forward direction. The proposed access is via the existing road reserve for Killeen Street, which is partly formed but is a no through road from Darling Street to Broadside Street adjacent to Cameron's Cove.
4The garage includes a 'green' roof above the garage comprising a150mm thick concrete slab, 800mm soil depth above the slab, landscaping, glass balustrade around the perimeter of the garage roof edge and northwards enclosing the southern edge of the deck above.
5The land falls away from the road towards the parkland at the rear. As there is a rock shelf across the block, it was proposed to excavate part of the rock to accommodate the garage area and then construct a 2.7m high wall adjacent an existing stair, which is to incorporate landscaping.
The site
6The site is described as Lot 101 DP 1042416, 136 Darling Street Balmain and has an area of 522.9 sq m. It contains a 2-storey brick and sandstone cottage, which has its main frontage to Darling Street. The site is located on the corner of Darling Street (12.65m frontage) and Killeen Street (42.69m frontage).
7Killeen Street is a relatively steep (1 in 4) narrow access way zoned 'Open Space' under LEP 2000 and it currently provides for a pedestrian connection only between Darling Street and Broadside Street (running along the site's western boundary). The formed, bitumen surfaced part of the street is approximately 2.7 m wide and variable, while the western side of the street is a heavily landscaped area formed within a low sandstone wall.
Planning controls
8The prevailing control is the Leichhardt LEP 2000 under which the site is within the Residential zone and the proposed garage is permissible with consent. As noted, the site is adjacent to a section of Killeen Street, which is zoned Open Space, where proposed ancillary works for the purposes of 'road' or alternatively 'private residential access way' are not permissible.
9Clause 7 contains the general provisions for the development of land including:
(3) Land use objectivesConsent must not be granted for development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the Plan as are relevant to the proposal and is satisfied that the development is consistent with those objectives.
For the purposes of this subclause, in the event of an inconsistency between the general objectives of the Plan and a specific objective applicable to the proposed use, the specific objective applicable to the proposed use prevails.
10The objectives for open space land are contained in cl 24 and the following are relevant in the subject matter:
24 Objectives
The objectives of the Plan in relation to open space are as follows:
(a) to maximise the provision of open space in order to provide a diverse range of settings and recreational opportunities to meet the needs of the community,
(b) to ensure the equitable distribution of, and access to, open space and recreation facilities,
(c) to retain, protect and promote public access to foreshore areas and provide links to existing open space,
(d) to ensure development is compatible with any Parks Plans of Management, Landscape Plans and Bicycle Plan adopted by the Council...
11However Clause 26(5) LEP 2000 provides that consent may be granted to the carrying out of development that is within the Open Space or Residential zones and is within 10 m of a boundary between those zones for any purpose for which development may be carried out either with or without development consent in the adjoining zone and on the other side of that boundary.
12Clause 26(6) provides that consent must not be granted unless the consent authority is satisfied that:
a) The development would not reduce the total area of land available for use as public open space, and
b) In the opinion of the consent authority, the carrying out of the development is desirable to achieve a better disposition of buildings and open space on the land.
13The site is located within a Heritage Conservation Area and in the vicinity of heritage items at 122 Darling Street (single storey stone house) and within adjoining streets under Leichhardt Local Environmental Plan 2000. The site is therefore subject to the provisions of Clause 16(7) - 'Development in the vicinity of Heritage Items' and 76(8] - 'Development in Conservation Areas' of the Leichhardt Local Environmental Plan 2000.
14There are a number of relevant development standards including Cl 19(3) requiring a minimum landscaped area of 40%, of which 25% must be soft landscaped area. Other relevant provisions are:
Clause 13 - General Objectives and in particular, Clause 13(2) objectives for the built and natural environment and amenity.
Clause 17 - Housing Objectives.
Clause 19 - General provisions for the development of land.
15Clause 15 deals with Heritage Conservation wherein the following objectives are relevant:
15 Objectives
The objectives of the Plan in relation to heritage conservation are as follows:
a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation,
(b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines,
(c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items,...
16Under the general provisions for development of land, cl 16 (8) provides:
Conservation areas
(8) Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to:
(a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or Aboriginal site that would be affected, and the contribution it makes to the conservation area, and
(b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development.
17The site is also subject to the provisions of the Leichhardt DCP 2000 and it is located within the East Balmain - Darling Street Neighbourhood. A number of design elements are listed of which the following are relevant:
Discourage additional driveway crossings and prevent traffic conflict points associated with driveway crossings and poorly designed access/exits in order to maintain pedestrian and vehicle flow,
Maintain significant sandstone retaining walls and integrate natural rocky outcrops into the landscape of the area, particularly where visible from public places.
18Draft LEP 2013 was being processed at the time of lodgement of the development application. It was subsequently gazetted in February 2014. However the subject application has the benefit of the saving provisions that allows for the new LEP to be considered as if it had not commenced. Under the LEP the site is zoned Rl General Residential and it is in a Heritage Conservation area. Killeen Street is zoned RE1 Public Recreation. Roads are permissible in the RE1 zone under LEP 2013. Development ancillary to residential development is not permissible. Although Clause 5.3 provides for 'Development near zone boundaries' this clause does not apply to zone RE1.
The evidence
19Detailed evidence was presented by:
Ms D Laidlaw; Consulting planner for council
Mr P Grech; Consulting planner for the applicant
Mr P Davies; Heritage consultant for the applicant
Mr J Coady; Traffic consultant for the council
Mr C Hazell; Traffic consultant for the applicant.
Access
20Insofar as a number of issues were raised, it appears that the joint conferencing by the respective experts has resulted in amendments to the garage design rendering it substantially acceptable subject to conditions. The remaining substantive issue concerns the proposed access along Killeen Street to the rear garage. This issue involves consideration of any legal planning control restrictions; physical planning impacts (character, visual and heritage), engineering aspects and safety.
21Assuming that legal access is permitted along Killeen Street, the engineers agree that whilst there are some physical constraints such as the protruding rock shelf, steeper gradients and existing vegetation removal requirement, practical access in accordance with AS 2890.1.2004 could be provided along this route despite some small sections exceeding the maximum gradient of 25%. Furthermore, they agree that the turning paths for the B85 design vehicle demonstrate that vehicles can satisfactorily access the proposed garage by travelling along Killeen Street and the garage driveway utilising the 6m diameter turntable that enables vehicles to both enter and depart the site by travelling in a forward direction.
22However, Mr Coady initially expressed some concerns that the turning path of the vehicle entering the garage locates the vehicle on the northern side of the garage, rather than centrally on the turntable. This creates a problem if the garage is to be used as a two car garage. However this issue could probably be addressed if the access driveway is designed to also operate as a "turning slot" to accommodate vehicles reversing from the driveway.
23Another matter raised by Mr Coady relates to the likely safety outcome due to the competing pedestrian and vehicular use of the road reserve. In his opinion a minimum carriageway width of 4m, which incorporates a 3m vehicular carriageway and an adjacent 1m wide pathway with a distinct separation line should be provided. Mr Hazell agrees with this.
24Apart from the provision of the "turning slot" the engineers basically agreed on a deferred commencement condition detailing the design requirements for the joint use of Killeen Street by both pedestrians and limited traffic accessing the garage.
Planning
25The planners addressed the identified planning and heritage issues in both their individual reports and the joint expert report. I have considered their following opinions on the basis of firstly the suitability of the access way in Killeen Street and secondly the merits of the garage.
26Mr Grech supports the use of the road for access on the basis that it has been managed as a public road for many years, it is accessible for vehicles, it is sign posted as a public road and is not classified as community land or subject to any Plan of Management (POM).
27Furthermore, he compared Killeen Street to other narrow streets nearby, where traffic is currently permitted on a similar basis to that proposed. These include Teren, Datchett and Union Streets with respective reservation widths of 5m, 5m and 3 - 4m respectively and each of these streets allow vehicular traffic on the basis of "shareways" without separate pedestrian/cycle ways.
28However Ms Laidlaw says that although Killeen Street can be used by vehicles, its current configuration (steep and narrow), its lack of vehicular access points, means that it is not generally used for this purpose. In response to the other streets identified by Mr Grech, she considers that Killeen Street can be differentiated from those other narrow access-ways by its narrower width and steeper gradient.
29In opposing the access way use she says that there is an existing informal charm to Killeen Street, which lends it a character more akin to a pedestrian way and there is no current need for the bitumen seal to be widened. In her opinion the current width of the bitumen seal and its edge circumstances (i.e. the vegetation to one side and the wall of the subject residence to the other) are such that it would be undesirable to encourage or promote use of it for vehicular traffic in conjunction with its established role in providing a pedestrian link between Darling Street and the foreshore.
30With regard to the heritage conservation considerations, Mr Davies says that historically, Killeen Street was available for vehicular traffic with no defined pedestrian path or landscaped verge. This commenced around the 1840 period and continued until the 1960s when Jubilee Place was created cutting across the lower section of Killeen Street. Prior to Jubilee Place it was the only road access to this area and functioned without modification to use the full 6 m width available and with the current gradient. Accordingly he says that there are no heritage obstacles to the use of the road by vehicles or adjusting the carriageway, if required, to provide some additional width.
31With regard to the proposed garage component, the planners disagreed as to whether the proposal would have an unacceptable impact on the conservation area and the character of the area. According to Ms Laidlaw the site has high visibility within the foreshore environment including Ewenton Park and therefore a high level of care is required to ensure any development contributes positively to the attractive visual and scenic environment.
32Her original concerns were that the exposed rock face is an important natural element that would predominantly be covered by the garage structure, which she considers is "of hard lines and formal, highly structured shapes..." Furthermore, the associated works would replace the rock face with a series of formal walls, which she considered would result in a built form that bears little empathy to the open space and foreshore environment.
33Consequently Ms Laidlaw said that the proposal was:
a) Contrary to the Heritage Conservation provisions of LEP 2000 Clause 15(a), (b) and particularly Clause 15(b) which makes specific mention of the objective 'to protect, conserve and enhance the character and identity of the suburbs places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore ... surface rock...and (c) (Heritage Conservation objectives) and Clause 16(8) Conservation Areas; and
b) Contrary to A8 DCP 2000 'Car Parking' in that the development does not respect the quality and integrity of the streetscapes of Leichhardt;
c) Contrary to Clause 13 (General objectives, LEP 2000) particularly sub-clauses (a) (protect and enhance the area's natural features, character and appearance'; and (b) 'protect, conserve and enhance the area's heritage.'
d) Contrary to the Desired Future Character under DCP 2000.
34Against this, Mr Davies says that the scale and location of the proposed garage are consistent with existing patterns of development in the immediate locality and with the modifications discussed in conferencing to improve the design of the garage and reduce the roof deck, then the proposal is suitable and appropriate for the area. He says that the pattern of development in Balmain allows for a small structure in this location, provided it retains the natural stonewall. The siting and form are also consistent and the addition of the green roof, putting aside other issues such as amenity, assists in keeping the scale discrete and the layering of green edge.
35Consequently in joint conferencing the planners agreed that undertaking the following amendments would reduce adverse impacts:
(1)Remove the retaining wall in front of the existing stone wall to the west of the site to expose the natural rock face.
(2)Cut back the curved deck so that the deck edge is straight and does not cover the rock face.
(3)Set the screen fence along the edge of the upper level in behind the planting closest to the edge.
(4)Change the glass screen along the edge of the upper level to a contemporary metal fence with clean lines. This would allow the edge planting to grow through it and overall reduce the heaviness of the built form.
Conclusion
36Having considered the evidence, the submissions and undertaken a view I consider this application merits conditional consent for the following reasons. Firstly, I am satisfied that a reasonably safe access way can be incorporated into Killeen Street on the basis of the details agreed by the engineers. This involves:
Some reconstruction of the existing pavement to provide for safe access and improved grading and sight distances.
The upgraded carriageway to be 3m wide with an adjacent 1m wide pedestrian pathway with clear delineation of the separate functions.
Provision of distinct paving at the Darling Street entry point together with appropriate restricted entry signage.
Provision of bollards at the Broadside Street frontage to prevent through traffic.
37Secondly, I have considered Mr Grech's evidence that there is currently a layback at the Killeen Street intersection, which facilitates vehicular access via the existing bitumen paving. Also, the sign posting indicating it is a street (that is accessible) albeit a "No Though Road", similar to other nearby narrow access streets. Furthermore, I understand from Mr Grech's enquiries shown in his statement, that Killeen Street is regarded as a public road, despite its Open Space zoning without any Plan of Management (POM) to manage or identify future uses for this narrow open space strip. On this basis I think it is a reasonable expectation for the adjoining owner to retain this access opportunity.
38In this regard I also note the submission regarding the entitlement of adjoining owners to access the public road as provided in the following cl 6 of the Roads Act 1993 No 33:
6 Right of access to public road by owners of adjoining land
(1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.
(2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.
39Insofar as Mr Coady preferred that some form of a 'turning slot' be provided adjacent to the garage/entry driveway, this was to facilitate improved access/ manoeuvring into the garage and also allow for safer turning and return of general public vehicles that might inadvertently venture down Killeen Street. However considering Mr Coady's opinion that any traffic flows in Killeen Street would be of "exceptionally low volume" (almost exclusively by the subject property occupants) and the consequential likelihood of traffic conflict is extremely remote, I then think that the proposed upgraded access way should result in a reasonably safe outcome, provided these works are completed prior to occupation/use of the garage.
40Accordingly, I have considered the submissions for council that if the use of the access way was to be permitted then arrangements should be made for the provision of the "turning slot" near Broadside Street. But this would require some form of access and easement over the private land because there is insufficient area within the existing road reserve. Consequently, I then accept Mr Hemming's submission that whilst the existing condition of Killeen Street does not deter vehicles from entering Killeen Street, there is no POM or s94 CP that identifies the community need for the turning slot and accordingly it would not be a reasonable condition to impose on this development, which can safely access its property without the turning slot. I rely on his submission that it would be unreasonable to impose such a condition in the circumstances.
41It also seems to me that the designated upgrading works will marginally improve pedestrian access via Killeen Street with the provision of the separated pathway. However, in this regard I note Mr Grech's evidence that Killeen Street only attracts minimal pedestrian traffic in any case because there are attractive alternative pedestrian paths nearby leading to the waterfront parklands. Therefore the combination of low pedestrian traffic and very low vehicle movents, together with the pavement marking and signage should result in a safe traffic environment.
42Apart from the practicality of utilising this access way in Killeen Street, I have also considered the planning controls. Insofar as LEP 2000 is the prevailing control, it seems to me that the use of the access way within the road reserve notwithstanding its 'Open Space' zoning is permitted by way of cl 26(5) of the LEP.
43As noted, it appears to me that this narrow section of Killeen Street would primarily have an access and landscaping function in the open space context. In my assessment the upgrading works for the access way will likely improve access for pedestrians and the works including replacement of landscaping should also lead to an upgrading of amenity. Accordingly I do not consider that the access way works will reduce the total open space area or that cl 26 (6) (b) is triggered but in any case I consider the disposition of the new footpath is a positive element of the proposal.
44In reaching this conclusion I have considered Ms McCulloch's submissions regarding the authority in Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 wherein Craig J dealt with an application for construction of an access road along an unformed road. In that case he reviewed the zoning provisions wherein the unformed road was zoned RE 1 Public Recreation. He stated that:
80 My inspection of the Site and its environs, including along the length of the unformed sections of both Stanton Road and Fairfax Road to Edwards Beach and into Wyargine Reserve, has caused me to prefer the evidence of Mr Nash to that given by Mr Daintry. I have earlier summarised the essence of Mr Nash's evidence that I accept. To my mind, Mr Daintry focussed too narrowly on the present state of the land over which the proposed driveway is intended rather than the likely state of that land if the objectives of the RE1 Zone are fulfilled and management proposals identified in the VMP realised. A broader consideration of the likely future for this area is required by s 79C(1) of the EPA Act.
81 While I have indicated that the provision of car parking and a hardstand area for vehicle manoeuvring is likely to be achievable in the south-eastern portion of the Site, notwithstanding shortcomings in the present plans for that area, it is the proposed driveway along the unformed section of Stanton Road providing vehicular access to the Site that I regard as unsatisfactory and justifies refusal of the application. These reasons focus upon that aspect of Mr Delprat's development application.
82 I do not accept Mr Daintry's evidence that the area to be occupied by the proposed driveway has no value for public use as open space or recreation other than as a pedestrian thoroughfare. It is apparent from the evidence given by local residents, supported by my own observations, that the land within the road reserve and its environs offers a relatively attractive bushland enclave within an otherwise developed urban area. It offers passive recreation with sufficient attraction to warrant volunteer bushcare groups participating in its management, as has happened. Indeed, it is apparent from the evidence, including the terms of the VMP, that the degraded state of the land along which the proposed access driveway is to run is, at least in part, a consequence of years of indecision as to the fate of the access driveway proposal for access to the Site. This is not said by way of criticism of Mr Delprat but simply identifies a reason for the present state of the land and tends to support my appreciation that the bushland characteristics of that land are not only capable of improvement but are likely to improve.
83 I have earlier identified the objectives of the RE1 Zone expressed in the LEP. I do not repeat those objectives. The form, length, height and levels of the driveway and its associated structures leads me to conclude that it does not meet the objectives of that Zone. Not only does its private use alienate it from the public user intended for that land but its physical presence is antipathetic to the land's open space designation, particularly in its juxtaposition to Wyargine Reserve. The impact of the driveway and its inconsistency with the values of the public open space in which it is proposed to be located would not, to my mind, be mitigated by the landscape treatment conceptualised by Mr Daintry.
84 Further, the construction of the proposed driveway would be inconsistent with the planning principles identified in cl 13 of the REP. Granting consent to construction and use of the driveway would not be consistent with maintaining the natural assets of the catchment as it would not provide for them to be restored "for their scenic and cultural values and their biodiversity and geodiversity". Observance of the objectives of the RE1 Zone of the LEP, when considering any development proposal, is more likely to achieve that end and, having regard to the VMP, would appear to be achievable. Secondly, construction of further hard drainage structures is not consistent with rehabilitation of the natural watercourse or riparian corridor.
85 As I have earlier acknowledged, the driveway, if constructed, would not be visible from Edwards Beach or Sydney Harbour. However, that fact takes no account of the visual impact of the structure from within the surrounding area, including the impact upon those moving from the residential areas to Edwards Beach or the Harbour foreshore. The proposed structure therefore fails to reinforce the dominance of landscape over built form as expressed in cl 6.4(1) of the LEP.
86 Quite apart from applying the provisions of the planning instruments to which I have referred, I am required by s 79C(1)(c) of the EPA Act to determine whether the Site is suitable for the development proposed. Clearly, the present zoning of the land, the adopted policy for its continued management under the VMP and the long time use of the land by the public as open space are all matters informing that consideration. Properly considered, they lead to the conclusion that the construction of the driveway as proposed would thwart the intended rehabilitation of this land as harbourside bushland and its enjoyment as such, by the public at large.
45It seems to me that there are different circumstances in the subject matter because part of the access way is sealed and combined with the existing degrade vegetation there will be no material change in the visual impact in the surrounding context. Another important difference is that there is no VMP or POM that classifies the road area or designates future open space uses. I am therefore satisfied to rely on the evidence of Mr Grech and Mr Davies that the area is fundamentally a road and accordingly the proposal is satisfactory in the subject context based on the prevailing provisions of LEP 2000.
46Consequently, I consider that the objectives of the zone are reasonably satisfied because the amount of open space within the road reserve is not changed and the access works will improve the accessibility for pedestrians who wish to utilise this steep route to the foreshore and associated open space areas. In my assessment this proposal reasonably satisfies the requirements of cll 7, 24 and 26 of the LEP 2000.
47In addition to this, consideration is also required regarding the heritage conservation provisions in cll 15 and 16(8) of the LEP 2000. Having considered the various evidence of the planners, I think that determinative weight should be given to Mr Davies opinion based on his expertise as a heritage expert.
48He described the history of Killeen Street whereby it was used for access to the waterfront areas in early times. It is typical of other similar streets in the locality, which contain both vehicular and pedestrian traffic (but not necessarily to all parts of each street) "with a generally comfortably managed outcome that works to provide access for pedestrians and vehicles. There is no doubt when using the narrow streets of Balmain that they are shared zones".
49I accept that Mr Davies has undertaken an assessment of the proposed works in Killeen Street covering the sign posting, poorly maintained vegetation, insignificant paving, covered sandstone kerbing and natural rock element and concluded that:
There is no adverse heritage impacts from continuing to use the street as originally intended, which is to provide access to properties and for pedestrian access,
The amended details for the garage retain larger sections of the exposed sandstone shelf, which he considers satisfactory in the subject context.
50In summary then I rely on the evidence of Mr Davies as a heritage specialist that there are no substantive grounds to refuse the application on impact on the conservation area or heritage grounds. Accordingly I think that the cl 15 objectives are satisfied and that Mr Davies assessment satisfies the requirements of cl 16(8) to permit conditional consent.
51The other significant element of this proposal is the garage. It is within the Residential zone and is permissible but its approval is dependent on the allowance of the SEPP 1 Objection to the landscaped area development standard requiring 40% under cl 19(3)(a) of LEP 2000. The proposal is to provide 33%, which excludes the "green roof" over the garage. If the green roof is included, the open space would be in the order of 44%.
52According to the SEPP 1 Objection the relevant cl 17 objectives are:
a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character,
b) to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents,
53In recognition of the 7% deficiency in landscape area, the proposal relies on the supplementary area of the green roof to satisfy the purpose of the standard to compliment and be compatible with the style, orientation and pattern of surrounding buildings, works and landscaping along with the intent of the controls within Leichhardt Development Control Plan (DCP) 2000 in order the achieve the desired future character.
54The SEPP 1 Objection states that:
The proposed complimentary landscaping within the green roof and surrounding the garage includes a mix of trees, shrubs, hedges and grass, which are varied and will provide interest and colour resulting in improved amenity for residents using this area. The landscape outcome will be neutral or positive when viewed from the rear within the streetscape (i.e. Broadside Street, Jubilee Place and/or Ewenton Park).
The location and use of hedges and select trees within the green roof assists in screening and softening the appearance of the existing southern elevation of the dwelling and large retaining wall. It also assists in disguising the proposed garage through screening on the ground level and through the planting along top of the garage giving it the appearance of a garden.
With regard to objective 17(b) of Leichhardt LEP 2000, the proposed green roof is consistent with this objective with soft landscaping to be provided over this space including hedges, shrubs, trees and turf. This is considered to improve the existing landscape space for use and enjoyment by residents of the site.
Additional areas for landscaping are provided around the site which provides an opportunity for deep soil zones to plant larger tree species.
55The SEPP 1 Objection states that strict compliance is unreasonable or unnecessary in the circumstances because:
a) The landscaping within the green roof provides a higher quality of private open space which is more accessible and better connected to the dwelling.
b) The green roof does not significantly reduce the amount of landscaped area provided, but rather provides it in a different configuration above the garage. The green roof has been designed with an 800mm base to provide for root growth and is proposed to include soft landscaping consisting of trees, shrubs, hedging and grass.
c) The provision of landscaping above the garage provides increased amenity to the residents of the property and improved views over the foreshore area with no unacceptable impacts on surrounding properties
d) The site is opposite Ewenton Park being a large public reserve providing passive recreation, picnic facilities and a time shared area for off-leash dog access, which provides abundant further recreation opportunities
56In my assessment of the circumstances, I am satisfied that Objective 17 a) and b) are reasonably satisfied notwithstanding the small deficiency in area and that the proposal will provide quality complimentary landscaping which retains reasonable views of part of the rock shelf and compliments the neighbourhood. Therefore I consider the SEPP 1 Objection should be allowed.
57In summary then, after having considered the planning experts evidence, I am satisfied that when the aforementioned amendments are undertaken, then the proposal will result in an acceptable outcome in terms of the residential/housing objectives to permit consent to be granted.
58However consideration of LEP 2013 is also required, on the basis that it had not yet been made. Under this draft LEP the subject land is in the RE1 Public Recreation zone where a road is permissible but if categorised as works ancillary to residential development, those works in Killeen Street would not be permissible. The relevant objectives of this zone are:
To enable land to be used for public open space or recreational purposes.
To maximise the quantity and quality of open space areas to meet the existing and future needs of the community...
59The planners disagree on the purpose of this zone because Ms Laidlaw says that the role of Killeen Street in providing a pedestrian connection between Darling Street and the foreshore is a legitimate and valuable function of an 'Open Space' zoning and it effectively performs as a continuation of the same zoning over Ewenton Park. She does not consider the provision of a 4m wide roadway, involving the loss of part of the garden bed and the necessity of maintaining vegetation trimmed and maintained so as to allow cars to pass would be an aesthetic improvement that contributes to the streetscape or conservation area.
60Against this Mr Grech says that the zoning of Killeen Street as RE1 under LEP 2013 is anomalous or some kind of oversight is contradicted by the fact that the land was also zoned Open Space under LEP 2000 at which time there was no requirement (as there currently is for standard template LEPs) for roads to be 'zoned'. Indeed, under LEP 2000 the vast majority of roads were unzoned - see map extract below.
61Nevertheless Mr Grech says that a road is permissible in this zone and that and is therefore an expected use of the existing Killeen Street road reservation. In his opinion the requirement to zone roads in a standard instrument inevitably leads to roads being zoned something such as R1 Residential and B1 Neighbourhood Centre near to the site, but this does not mean the LEP should be interpreted to mean that there is an expectation for a house or a shop on that land.
62However he notes that whilst Killeen Street presently functions as a road and is managed as road by Council nevertheless the open space functions of Killeen Street will never likely be more than providing a pedestrian connection, and to that extent is limited in any case for the reasons set out by Mr Hazell and is not an attractive pedestrian desire line.
63Notwithstanding the current status of LEP 2013, I do not consider it should be given such weight that would lead to the refusal of the proposed access way within Killeen Street because a road is permitted. Even though it has a RE 1 Public Recreation zoning, I think that the zone objectives are reasonably satisfied because there is no POM and the land will remain available for its access function connecting with other open space areas and the proposed landscaping works should improve the quality of the existing neglected landscaping.
64In summary then, I am satisfied that the proposed garage, as modified by the planners agreement reasonably satisfies the relevant planning controls particularly considering its recessed location in the neighbourhood. I am also satisfied that the minor upgrading works agreed by the engineers can be undertaken to accommodate both the minimal vehicle usage and pedestrian use within a safe environment.
Court orders
65The Court orders that:
1.The appeal is upheld.
2.The SEPP 1 Objection to the landscaped are development standard in cl 19(3) of LEP 2000 is allowed.
3.Development consent is granted to Development Application D/2013/490 for the construction of a garage at 136 Darling Street Balmain and an access way in Killeen Street subject to the conditions in Annexure A.
4.The exhibits may be returned except for 1, 6, 7, 9, A, B, C, D, E and F.
R Hussey
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: 29 August 2014