Gamas v Leichhardt Municipal Council

Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 ; CASES CITED: Ramsay v Leichhardt Council [2005] NSWLEC 422; Segal & Anor v Waverley Council [2005] NSWCA 310

APPLICANT Mr J. Strati, solicitor SOLICITORS Avendra Singh Strati & Kam

RESPONDENT Ms E. Rankin, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 The appeal arises from the refusal by Leichhardt Municipal Council (the council) of development application D/2004/345 relating to a property known as 314-316 Norton Street, Leichhardt (the site).

2 The site comprises two separate allotments described as lots 29 and 30, Section 3 in DP 1162. It is located on the western side and northern end of Norton Street Leichhardt, a short distance to the south of the intersection with the City West Link Road and is rectangular with a frontage to Norton Street of 20.12 m, a depth of 30.48 m and an area of 613 sq m. There is a fall from the east of the site or the Norton Street frontage to the west of approximately 1.4 m over the 30.5 m. There is no vegetation existing upon the site.

3 The site is currently improved with a single-storey commercial building at No. 314 Norton Street erected to the Norton Street footpath. A single-storey residential dwelling at No. 316 Norton Street is set back from the street and two metal shed structures are located at the rear of the existing dwelling with one shed being connected to the dwelling by a metal awning.

4 The built form of the immediate locality comprises a mix of commercial and residential uses and includes Victorian terraces, attached and detached contemporary buildings of one and two storeys and single-storey cottage style residences.

5 At ground level, retail and business uses are located mainly on the western side of Norton Street with a higher proportion of residential uses occurring on the eastern side. The eastern and western sides of Norton Street are zoned differently with the western side zoned business and the eastern side zoned residential.

6 The development application provides for the demolition of the existing structures and the construction of a new three-storey building comprising four commercial tenancies on the ground floor and four dwellings on the first and second floors over a basement car park accommodating 15 spaces. Remediation works are also proposed.

7 The site is located within the Business zone pursuant to Leichhardt Local Environmental Plan 2000 (the LEP). Clause 7.3 requires the consent authority to take into consideration the relevant objectives in the LEP.

8 Clause 19(6) - Diverse Housing provides for a mix of dwelling types for development containing four or more dwellings. The proposal does not satisfy the mix required by this clause, however a State Environmental Planning Policy No.1- Development Standards (SEPP 1) objection was lodged to show why compliance was unreasonable and unnecessary in this instance. The non-compliance was not a matter raised by the council.

9 Clause 23 provides for a maximum floor space ratio of 1.5:1. There was no dispute that the proposal satisfied this development standard.

10 State Environmental Planning Policy No.65, Design Quality of Residential Flat Development (SEPP 65) also applies to the proposed development.

11 Leichhardt DCP 2000 (the DCP) also applies and the relevant clauses relate to Pt A10 2.5 - Leichhardt Commercial Neighbourhood, Pt B1.1, C1.1 and B1.2 - Site Layout and Building Zone and Building Form Envelope and Siting, Pt B3.1 - Solar Access and Pt B3.3 - Visual Privacy.

12 The council filed a Statement of Issues containing six issues. These can be grouped into the following main areas. 1. Whether the relationship with the residential properties at the rear is acceptable considering bulk and scale, aural and visual privacy and overshadowing, and 2. Whether the proposal provides an acceptable clearance in the Norton Street streetscape. 13 The parties agreed to the appointment of Mr Andrew Smith as the Court appointed town planning expert.

14 A number of local residents provided their evidence on the site view and a number of properties at the rear of the site with frontage to James Street were inspected at this time. The issues raised by residents are generally addressed in the consideration of the above two main issues.

15 The relationship with the adjoining residential dwellings at the rear of the site was the significant issue in the proceedings. Unfortunately the LEP and DCP provide little guidance on how to deal with the interface between the business and residential zones.

16 In Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 Commissioner Bly formulated a principle that addresses this issue. He states: "As a matter of principle at a zoned interface….any development proposal in one zone needs to recognise and take into account the form of existing development likely to occur in an adjoining different zone."

17 The Court also had the benefit of the judgment of the Senior Commissioner in Ramsay v Leichhardt Council [2005] NSWLEC 422. This case involved alterations and additions to the property adjoining the subject site and raised similar issues with the zoning interface. A number of residents who provided evidence in this case also provided evidence in these proceedings.

18 The proposal provides for three levels of development not including the basement car park. At the rear boundary, the basement level has a 1 m setback for part of its length and a nil setback for the remainder. The lowest level consists of commercial space. It has a 2 m setback to the rear boundary and is approximately 1 m above natural ground level at this point. The two upper levels contain residential accommodation. The building at the next level has a setback of 11 m with the balcony setback 9 m. The building at the top level is set back 17.5 m and the balcony 15.5 m.

19 Mr Smith's evidence states that the setback of the ground floor commercial space is unacceptable and needs to be increased to 3 m with a corresponding reduction in the basement car parking to provide deep soil planting. He also states that the western part of the building should be reduced in height by 1 m, although he accepted in cross-examination that a 500 mm reduction would generally be acceptable and would be consistent with the requirements in the DCP. Mr Smith also provided details of the sight lines from the balconies of the proposed development to the residential properties to the rear. 20 In Ramsay, the Senior Commissioner stated that: "The residents of James Street have a reasonable expectation of a 6 m setback from the common boundary with a strip of dense landscaping along this boundary."

21 In his assessment a two-storey building could be erected at this setback and any additional level further set back but not being wholly visible from the properties in James Street. In suggesting the above guidelines the Court is not obliged to follow the suggestions of the Senior Commissioner (Segal & Anor v Waverley Council [2005] NSWCA 310).

22 There can be no dispute that the location of the site adjoining a residential zone places constraints on the redevelopment of the site that would not exist if it were surrounded by similarly zoned land. I agree with Mr Smith that the rear setback is inadequate and that the impact in terms of bulk and scale is an unacceptable imposition on the residential properties to the rear, particularly 79 and 81 James Street.

23 While Mr Strati, the applicant's advocate, urged the Court to accept the proposition that a hedge of some 4 to 5 m could be provided in the setback area (with a small reduction in the basement car park footprint) in my view this proposition must be rejected for a number of reasons.

24 Firstly, there was no landscape evidence to suggest that this could occur. This is particularly important considering that it was the fundamental measure to screen the building from the residential properties at the rear. Secondly, the dense hedge would likely create unacceptable shadowing impacts on the residential properties in James Street, and thirdly, it is not appropriate to rely solely on proposed landscaping to overcome an unacceptable feature of the design, the unacceptable feature being the proximity of the building to the rear property boundary.

25 If the matters in Ramsay are considered against the proposed development two observations can be made. These are: 1. The setbacks of the two upper residential levels of the proposal exceed the setbacks suggested in Ramsay , and 2. The setback of the ground floor commercial component of the proposal is significantly less than the 6 m suggested in Ramsay . 26 In my view, it would seem reasonable for the rear setback to be considered against the particular impacts likely to be generated by the commercial activities on the ground floor and the ability of the setback to be properly landscaped. The circumstances in Ramsay were different as the application was for alterations and additions to an existing building.

27 If the opportunities for visual and aural impacts are restricted and a detailed landscaping plan provided to show how the area can be properly landscaped then it may well be argued that a setback of less than 6 m may be appropriate. In saying this I have little trouble in concluding that the 3 m unconstrained setback suggested by Mr Smith should be the starting point and should include a reduction in the height of the western elevation, also as suggested by Mr Smith.

28 Mr Smith did not see the issues of visual and aural privacy as issues that would warrant the refusal of the application. Based on the sight lines provided to the Court and the separation distances between the residential accommodation in the proposed development and the residential properties in James Street, I concur with Mr Smith's conclusions.

29 Similarly, I find that the overshadowing of adjoining properties is not so significant that it would warrant the refusal of the application for this reason. I note Mr Smith's assessment indicates that the proposal satisfies the solar access requirements in the DCP.

30 In relation to the impact on the Norton Street streetscape, Mr Smith concludes that the proposal is acceptable notwithstanding a breach of the DCP building envelope guidelines. He notes that the requirement applies principally to residential development. As there is a more disparate and generally larger form of development on the western side of Norton Street the breach is not overly noticeable in this context. He concludes by stating that the proposal is consistent with the applicable character and envelope controls applying at the street frontage and that the building will contribute positively to an area that is and will continue to be in transition as further sites are developed. I concur with the assessment of Mr Smith on the impact of the Norton Street frontage.

31 One other issue was raised that was not formally addressed, as part of these proceedings and in my view remains an outstanding issue. This issue relates to the ventilating of the proposed car park. No details were provided and on the basis of the available information it would appear that the only possible venting opportunity would be adjoining the residential properties. In my view this is an undesirable potential impact and should be addressed if further applications are to be lodged for the site.

32 For the preceding reasons the orders of the Court are: 1. The appeal is dismissed. 2. DA/2004/345 for the demolition of all existing structures and the construction of a mixed commercial/residential development at No. 314-316 Norton Street, Leichhardt is refused. 3. The exhibits are returned with the exception of Exhibits 1, 2 and 7.

      G T Brown
      Commissioner of the Court
      ljr

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.