Failla v Leichhardt Council

Land and Environment Court (NSW)|2011-11-30

Ms R McCulloch Pikes Lawyers (Respondent) File Number(s): 10824 of 2011

Judgment 1Mr and Mrs Failla propose to demolish their existing dwelling and construct a new three level dwelling house. Leichhardt Council has refused their Development Application, No. D/2011/193 and they are appealing that decision. 2The issues in the appeal are whether the design of the development is appropriate in terms of its impact on residential character, the heritage conservation area, adjoining heritage items, the amenity of neighbouring properties and whether the development complies with the council's planning controls. The Court is also required to determine whether development standards contained within those planning controls regarding floor space ratio (FSR) and landscaped area should be varied.

Background and the proposal 8The plans filed with the application and before the Court are the plans that were initially lodged by the applicant with the council. Following initial assessment of the application, the council advised that the plans were not satisfactory and amendments were made in an attempt to address the council's concerns. Despite the changes made, the council refused the application on the grounds of its design being inconsistent with the prevailing character of the area and its heritage context; non-compliance with the council's planning controls; privacy impacts and adverse environmental amenity impacts. The applicants are seeking the Court's determination of their original plans, not those plans that were determined by the council. 9The application proposes the demolition of the existing dwelling and garage and the erection of a new garage at street level with a further two levels above the garage. The front wall of the garage would be constructed on the front property boundary of sandstone and its garage door would be recessed approximately 1.4m. 10An entry gate is proposed adjacent and to the west of the garage door servicing an entry hall that would run along the western side of the site to a stairway at its approximate midpoint. That stairway provides access to the lower living area that would contain a living/dining room, eat-in kitchen, bathroom and family room. A balcony is proposed at the front and eastern side of the building adjacent to all rooms with the exception of the family room that would open to a grassed yard area in the south-eastern corner of the site. The balcony and side walls extend to the property boundaries and the rear wall of the family room extends to the rear, southern boundary. Whilst not detailed on the plans, the balcony balustrading is drawn as glass panels. 11The existing building is setback between 180 and 200mm from the western side boundary and between 1.16 and 1.26m from the eastern and 140mm from the rear boundaries. 12A second stairway above the entry stairs provides access to the upper floor. That floor would contain three bedrooms, ensuite and bathroom with a balcony at the frontage and along the entire eastern face of the building to within 320mm of the eastern side boundary and, where the site widens at the rear, the width of the balcony would be extended to 1.8m in width and 3.15m beyond the face of the rear wall. The western wall is also to be built to the boundary and the eastern wall varying from 1.22m adjacent to all rooms with the exception of bedroom 3 where is extends a further 280mm towards the eastern boundary, providing a setback of 940mm at that point. 13A planter box is proposed above the garage at the front of the site. A hedge would be planted along the side boundary opposite the kitchen and family areas and around the perimeter of the rear yard. That area would be grassed with pavers adjacent to the doors off the family room. 14Floor level of the garage would be RL9.13 which is identical to the existing garage level, the first floor would be RL11.73, some 350mm higher than the existing intermediate level and the upper floor at RL 14.88, 1.03m higher than the rear portion of the current upper floor and 70mm lower than the front section of the dwelling. 15The roof of the existing dwelling is a steeply pitched gable roof with a ridge height of RL19.11 and gutter line of approximately 17.48. The roof of the proposed dwelling could be described as "flat" falling from the eastern side at RL17.98 to the gutter along the eastern side at RL17.48. Two "monitors" one above the main bedroom addressing Darling Street and one above bedroom 3 are also proposed. The height of these structures extends to RL19.11. 16The front elevation presents the sandstone garage wall and doorway at the lower or street level and floor to ceiling glazed walls on the living level, setback approximately 2m from the street boundary. Similar glazing is proposed on the upper level around the main bedroom with a smaller window provided to the ensuite. A sliding, adjustable louvre panel is also proposed at the edge of the upper level balcony off the main bedroom. The western elevation presents solid walls to the adjoining property, those walls being constructed on that boundary. The eastern walls on the mid and upper floors comprise primarily floor to ceiling windows with the exception of a 2 m long painted render panel to the living area and infills around the bathroom and kitchen windows to provide for the installation of cabinetry and privacy to bathroom areas. These windows are designed to take advantage of the panoramic views of the harbour that are enjoyed from the site. 17The lower level would also present as a blank wall to the rear boundary and the upper level, which is setback around 5m, would feature an angled window and rendered wall.

The planning controls 18The site is zoned Residential under Leichhardt Environmental Plan 2000 and the proposal is permissible with consent in that zone. It is also located within the Balmain Heritage Conservation Area and as noted above, is within the vicinity of a number of Heritage Items. For that reason, the provisions of cl 16(7) of the LEP (Development in the Vicinity of Heritage Items) and cl 18(8) (Development in Conservation Areas) must be considered when determining the application. 19Development standards for FSR (cl 19(2)) and landscaped area (cl 19(3)) also apply and are not met by the application. Accordingly, an objection to those standards has been submitted under the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP 1). 20Other provisions relevant to the application include the general objectives of the plan (cl 13), the heritage objectives (cl 15), the housing objectives (cl 17) and general provisions for the development of land (cl 19). 21Leichhardt Development Control Plan 2000 also applies to the site and there are a number of controls within Parts A and B of that DCP that must be considered. In addition to those general controls, the site is within the Darling Street East precinct and specific consideration of the desired future character (DFC) of that precinct, building elements and landscape is required. Specifically, the DFC for the precinct is:

Maintain the historic two storey scale of development.
Encourage the continued use of existing architectural styles, and materials. Materials used should include unpainted stone, masonry, timber framed openings and slate roofs.
Front fences should be low level iron pickets.
Ensure the sharing of views by maintaining a built from which follows the topography of the land. 22Building elements should:
Preserve the consistency of colonial and early Victorian architectural detail of dwellings.
Maintain and encourage the characteristic materials and architectural elements of the area including rendered finishes, painted brick, timber framed windows and doors, as well as vertical proportions in building design elements.
The provision of posted verandahs is encouraged where consistent with the architectural styling of the building.
New development or significant additions to buildings should respect the existing context of the streetscape in terms of scale, materials and sympathy to the existing built form.
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.

The evidence 23The hearing commenced on site and included observation of the site and the extent of proposed works from Nos. 12, 16 and 24 Darling Street where the residents of those dwellings discussed their specific concerns. These were in relation to amenity impacts in terms of overlooking and overshadowing, the need to retain access along the common boundary to maintain their dwelling (No. 16), the design of the development not fitting what they considered to be appropriate, impacts of site excavation and impacts on views. 24The council had also arranged for the Court and parties to undertake an inspection from the harbour in order that the site and its surrounds could be observed from that viewpoint. 25Expert evidence was heard from Mr K Burrell (town planning) and Mr R Edgar (heritage) for the applicant and Ms D Laidlaw (town planning) and Mr R Moore (heritage) for the council.

Heritage 26The council contends that the proposed development would have an unacceptable adverse impact on the residential character, the conservation area and nearby heritage items. The only areas of agreement between the experts is the prescriptive controls that apply to the application, that the demolition of the existing dwelling is not opposed and that the potential for overlooking the adjacent heritage item could be partly prevented by raising the boundary fence height to 1.3m above the passageway.

Height 27Mr Moore says that the core issue of the appeal is the need for any new building to be well-mannered, reticent and deferential to established cultural values. He says that the proposed building, both physically and visually, due to it being three levels, accentuate its height, scale and bulk in relation to its neighbours and that where there is evidence of three level development in the vicinity of the site, those buildings do not change or distort the enduring and prevailing two storey scale of the locality, and especially the Darling Street streetscape. He says that this is noticeable from within the Darling Street East precinct and also from the water and that the proposed dwelling would appear obtrusive and comparatively excessive in height for its site and the locality. Mr Edgar says that the proposed building height is considerably less that the existing overall (in the order of 1.3m) and virtually the same at eaves level.

Fenestration 28Mr Moore says that part of the locality's distinctive character is the fenestration pattern of dominant wall areas into which window and door openings are "punched" and that the extent of full length door and window glazing is incongruous in scale, character and materials and reinforces the exaggerated difference between the proposed house and other buildings of its setting and goes beyond what might be argued to be a strategy to express the buildings 'contemporaneity' and 'difference to its neighbours'. Mr Edgar says that the glazing of the proposal is not on the face of the building but recessed into the verandah behind the louvre screen obviating window proportions associated with windows punctured into wall at the surface of buildings and that is referenced to vertical proportion of contextual openings provided by openings between those screens.

Roof form 29Mr Edgar says that the roof form is derived from the architect's intention to avoid thematic mimicry of 19 th century forms and to contain the building bulk within a minimal envelope, and that the scaling and modulation of the proposal relate directly to that of the houses on either side of it. Mr Moore says that the roof with the skillion roof monitors, will serve to emphasise the presence and difference of its design in its context and that it will be a noticeable, major obtrusion within a townscape of otherwise mostly harmonious buildings.

Architectural detailing 30Mr Edgar says that the DCP requires infill buildings to be 'complementary' and that this requires new work to assist and enhance the interpretation of the heritage and provenance of the streetscape and items within the visual catchment, that the design proposed does this without creating any confusion as to the periods of development and will develop a patina that will continue to reinforce the province of the adjoining Heritage items and its historic relationship with the park and waterfront. Mr Moore maintains there is no complementary or harmonious relationship evident.

Pattern of development/control lines 31Mr Edgar says that at first floor level, the proposed building occupies the same footprint as the existing house and that it would be possible to reduce the rear section by 400mm, to minimise any perception of negative impact and also scope to reduce the apparent length of the second floor (which is set within a zone that is defined by the alignment of the rear of the buildings contained in the block from No 12-24) by moving that floor toward Darling St to align with No 16 and reduce the verandah at the southern end to provide an increase in the view corridor at the rear of the properties. Mr Moore says the building does not fit into or complement the established pattern of dwellings and consciously chooses to depart from that pattern.

Garage 32Mr Edgar sees the fact that there is an existing garage as the reason it should remain whereas Mr Moore says that there would be benefit in deleting the garage so as to maintain the distinguishing character of the group of buildings and the precinct in which the site is located.

Streetscape and relationship to heritage items 33Mr Edgar cites the Burra Charter as encouraging the co-existence of cultural values as a means of understanding the layers of meaning of a site or precinct and says that for that reason, new work should be readily identifiable and that the proposal presents a complementary backdrop to the earlier architectural response to the waterfront of a working harbour in a more abstract form than emulation of more vernacular form and fabric of earlier traditions. Mr Moore says that the proposal will do nothing to enhance the heritage items around it and it is, in his opinion, a fashionable architectural character which could be applied to a building in any place and would say little about that place and whilst it would be markedly apparent in this context as a modern building, it would also say little or nothing about this place or how its design relates to the heritage setting in which it would have been built.

Heritage expert's conclusions 34Mr Moore says that the proposed development has such attendant adverse consequences for the HCA that it should be refused whereas Mr Edgar says that the design satisfies the objectives of the DCP, enhances the cultural heritage of the items in it vicinity and the streetscape and seeks to provide a sensitive infill by the lightness of the structure and the palette of finishes proposed.

Streetscape 35The planners agreed that a contemporary approach to the design of a proposal for the site could be satisfactory and that the 'control line' principles of the DCP are difficult in this case where there is sloping topography and non-homogenous architecture. There is fundamental disagreement as to the acceptability of the proposal in terms of its streetscape impact, degree of consistency with the DCP's DFC and the appropriateness of the proposal's relationship to its context. 36Mr Burrell says that it is appropriate for the development to use a visually light treatment which aids in differentiating the new from the old and which has a transparency that does not challenge the nearby heritage buildings. Ms Laidlaw considers that the proposal departs too dramatically from those elements of the built environment that currently define and shape the character of the streetscape and that the composition of materials, shape, detailing and size/height of the development make for a highly assertive presentation that challenges the adjoining heritage item and impacts negatively on the streetscape and that the nature of those impacts could only be resolved through a fundamental re-design.

Amenity 37The experts agree that the main issues are building bulk and overshadowing with regard to No. 16, bulk, visual and acoustic privacy to No. 12 and concern regarding views in relation to the properties to the west. A number of design changes were agreed to which, in part, address some of those issues. These include stepping down the first and second floors at the rear by around 400mm, sliding forward the 'second' floor plan by approximately 400mm, indenting the south-west corner of bedroom 3 so that the impact of the bulk of this wall would be removed from the boundary and increasing the height of the eastern boundary fence. Other changes, such as reducing the length of the balcony, whilst agreed in principle were not agreed in terms of the extent of change required. Those changes put by Mr Burrell for the applicant were agreed to be matters that, should the Court find appropriate, could be addressed as conditions of consent.

Views 38The agreed issues in relation to views are those views to Sydney Harbour, the Harbour Bridge, North Sydney skyline and Luna Park and the impact of the proposed dwelling on those views currently enjoyed by Nos 16 and 24. Again, the proposed changes suggested by the applicant, particularly in relation to the relocation of the rear, roof 'monitor' and its reduction in size, were agreed to improve the impact on view loss. It is also agreed that the removal of the current pitched roof and the replacement flatter roof will open up views currently not available from No. 24 however Ms Laidlaw says that the views that would be left are not as high quality as currently exist. Mr Burrell says that the changes provide a better view including more of North Sydney.

Floor space ratio 39The planners agree that the maximum FSR for the site is 0.7:1 and that the proposed FSR, without any of the changes suggested in evidence, is 1.5:1. According to the Statement of Environmental Effects lodged with the application and the objection to the FSR development standard under SEPP1, the FSR of the existing dwelling is 1.36:1. The overall increase in floor area to that which currently exists on the site is 21sqm of which approximately 6sqm is at the ground, garage level, 4sqm at first floor and 10sqm at second floor. 40Mr Burrell says that the variation to the development standard is appropriate in the circumstances of the case as the objectives of the standard are met, development in the immediate locality has similar floor space ratios and that the proposal will not result in any unreasonable impacts on residential amenity and character of the locality. Ms Laidlaw disagrees and says that the new building, with walls that are higher and closer to the boundary add to the bulk of the building and says that the objection is not well founded as it is of excessive bulk, is comprehensively inconsistent with the style, orientation and pattern of development in the locality and the built form controls of the DCP.

Landscaped area 41It is agreed that the development standard contained in cl 19(3)(a) of the LEP requires a minimum total landscaped area of 40% and a minimum 'soft' landscaped area of 25% of the total landscaped area (i.e. 10% of the site), that the proposed development provides a landscaped area of 11.6%, qualitatively, the proposed open space preforms better in serving the amenity of the proposed development in that it now flowed from an internal living space and had improved solar access, that it would be appropriate to replace the existing avocado tree with a native species of 'skeletal form', more suited to its location and also to improve the view from uphill properties. 42Mr Burrell says that, with 15sqm of deep soil planting the 'soft' area standard is met however agrees the general landscaped area is not however says the area provided is satisfactory, particularly considering the area provided in the yard of the existing house (only 3.2sqm) and the increase in permeable areas and will be a significant improvement to its size and amenity. Ms Laidlaw says that the objection to the development standard is not well founded due to her concerns at the interface between No 12 and No 14 and No 14 and No 16 Darling St due to the lack of separation around the site's boundaries which, whilst currently existing, would be exacerbated under the proposal because it would be constructed closer to each boundary and at a greater height so as to intensify the acoustic privacy problems by concentrating future outdoor recreation activities in the south east corner.

Side setback 43The experts agree that the proposal does not comply with the side setback controls contained in the DCP and Ms Laidlaw noted that the variation is more significant than for the existing building, taking into account both the increased height of the walls and the fact the western wall is to be placed on the boundary and the eastern building elements (especially the balcony) placed closer to the boundary. Mr Burrell says that the proposal performs satisfactorily whilst Ms Laidlaw says that it does not, primarily in terms of bulk, and scale, streetscape, impact on amenity and access for maintenance purposes to the side wall of No. 16 Darling Street. Ms Laidlaw says a minimum width of 900mm is required, there is currently a separation of 650mm and that will be reduced to approximately 450mm. Mr Burrell cites an example of a similar gap in nearby Cove Street. Evidence was tendered (Exhibit G) that indicates scaffolding can be erected within a confined space down to 400mm in width that would allow for "a medium sized person to access it for the purpose of construction, maintenance, painting etc."

Building envelope 44It is agreed that the proposal breaches the building envelope control (Part B1.2) and that although there are some three storey buildings in the locality the predominant scale of development is that of two storeys. Ms Laidlaw says that the third storey, where it exists, is more commonly in attic or sub-floor and Mr Burrell notes that the existing house is three storeys. Ms Laidlaw says the breach of the building envelope control is of concern because the control is breached with a flat and atypical roof form, creating a boxy shape which accentuates its height as compared to a pitched roof and considers the height 'jarring' in relation to the interface with No. 12 Darling Street and generally, in terms of its diversion from the underlying character of the local built environment, including the pattern of buildings stepping down the slope to the Harbour. Mr Burrell disagrees that the proposal's shape accentuates its height, says the current house exceeds the building envelope and that the proposal, penetrating the envelope through the first floor verandah and the monitor is acceptable. He says it is not uncommon for buildings in Balmain to exceed the envelope control and because the volume of the roof has been significantly reduced and the eave lines for the existing and proposed houses are comparable in height the design is appropriate.

Desired future character 45The experts fundamentally disagree on this contention. Ms Laidlaw relies on her assessment of the development in relation to the above and concludes that the proposal would have a highly unsympathetic relationship to the streetscape, Balmain conservation area and to heritage items in the vicinity as viewed from Darling Street, Weston Street, Illoura Reserve and from the Harbour and it is inconsistent with the guidelines in the DCP for the Darling Street Distinctive neighbourhood as well as the general guidance on elevations and materials. 46Mr Burrell says that the proposal is an acceptable contemporary design that recognises and responds to the desirable elements of the locality, the height, bulk, setback and scale are acceptable in the local context as is the FSR and landscape area and these are also consistent with the objectives of those standards. He says the proposal will not have an adverse impact on the streetscape, will maintain a reasonable standard of amenity for the neighbours and not result in any unreasonable visual or acoustic impacts so considers the proposal is a suitable form of development for the site.

Conclusion and findings 47Determination of the application requires a merit assessment of the proposal and consideration of the objections to the two development standards contained within the LEP in accordance with the provisions of the SEPP. 48With regard to the merits of the application, there are issues of heritage, impacts on amenity of adjoining properties, design and compliance with the council's planning controls that are particularly relevant in this case. Having carefully considered the evidence provided, the council's planning controls and given particular consideration of the locality within which the site is located, I find that the design of the proposed building, in its context, is unsatisfactory. I accept the evidence of Mr Moore that the dwelling could be suitable in other locations, rather than being appropriate and respectful to the important historic context of the site, the adjacent heritage items and what is envisaged under the council's planning controls for the Darling Street East precinct. 49The more general controls contained within the LEP and DCP are not met by the proposal and I accept the evidence of Ms Laidlaw that the design, bulk and scale of the dwelling is unsympathetic when viewed from adjoining properties, from the streetscapes of Darling Street and adjacent areas. Whilst I accept that the amendments proposed go some way to address the impacts of the development on the adjoining properties, the location of the additional floorspace at the rear, upper level of the dwelling has unacceptable impacts to those properties. 50In particular, the design of the development with the roof monitors and materials proposed is not complementary to the streetscape and does not reflect the DFC envisaged in the council's DCP. This is not a criticism of the architecture itself, the dwelling has been designed to take advantage of the panoramic views available and provide a modern living environment for the applicants. In another area, without the historic context in which this site is located, the design would be acceptable. The proximity to heritage items requires much more careful consideration of the design elements so that the objectives of the controls are satisfied. 51The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, where a number of questions are asked. Those questions are as follows: (1)Is the planning control in question a development standard? (2)What is the underlying object or purpose of the standard? (3)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 objectives specified in section 5 (a)(i) and (ii) of the Environmental Planning and Assessment Act 1979? (4)Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? and (5)Is the objection well founded? 52There is no dispute between the parties that the FSR and landscape area controls are development standards. The objectives and purpose of the standards is informed by the objectives for housing which are found in cl 17 of the LEP and in particular, those that are 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 the DCP to achieve the desired future character; 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. 53The aims of the SEPP are to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 54The objects of the Act that must be considered are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 55Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 examines the requirements to uphold an objection under SEPP 1. His Honour states that: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1)...... 56At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard... 43The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 57Determination of the objection to the development standards requires different considerations to that of the merit assessment of the application. Particular reference to the objects or purpose of the standard is required and an assessment of whether those objects are met by the proposal. In the circumstances of this case, I find that the development is not complementary to or compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and, on taking into account the suite of controls in the DCP, does not achieve the desired future character for the Darling Street East precinct. For those reason, I find that the objection to the development standards is not well founded and the application must fail.

Orders 58The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application, No. D/2011/193, which proposed the demolition of an existing dwelling and the construction of a new dwelling at No. 14 Darling Street, Balmain is refused consent. (3)The exhibits, other than Exhibits A and 1 are returned. Sue Morris 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: 22 December 2011

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Judgment (26 paragraphs)

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