Gillespies v Warringah Shire Council

CASES CITED: Gillespies v Warringah Shire Council [2002] 124 LGERA 147; Project Venture Developments v Pittwater Council [2005] NSWLEC 191

APPLICANT: Mr G McConnell, litigant in person SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr S Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11306 of 2005 - Gavin and Deborah McConnell v Leichhardt Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Council (the council) of a development application to alter and add to an existing two-storey terraced dwelling, at Lot 1, DP 196923, being No 5 Hearn Street, Leichhardt. The subject terrace is the middle of a row of three. 2 I visited the land in company with the parties on the morning of the s 34 conference held on-site. Local residents gave evidence. 3 I have concluded that the SEPP1 objection to the floor space ratio, (FSR) in cl 19 of Leichhardt Local Environmental Plan 2000, (LLEP2000) is not well founded and as a result the application must fail. The land 4 The land is situated on the eastern side of Hearn Street, between Emily and Albion Streets, and has an area of some 182m2. The site is irregular in shape with a frontage of 4.84m to Hearn Street, and a depth on the north of around 22.7m, and a rear boundary of 14.18m. It has a right-of-way about 900mm wide, extending 9.3m in length from the Hearn Street property boundary, limited in height, provided on title between Nos 5 and 7 Hearn Street for the extent of the original two-storey portions of these dwellings. 5 The land falls approximately 1.1 metres from Hearn Street to the rear and White's Creek, with a slight crossfall at the rear. 6 The existing dwelling on the land is a two-storey terraced dwelling, with part single/ part two storey additions to the rear and is in a row of three similar dwellings. 7 White's Creek runs through the rear of the land on a strip of land about 3m wide covered by a concrete slab. 8 Two small freestanding metal sheds are located to the rear of the land. 9 A mature eucalypt tree is growing near the rear of the land, and a Chinese tallowwood is located within the street setback to Hearn Street. 10 A large eucalypt is also located in close proximity to the land, within the front setback of No 3 Hearn Street. 11 A brick party wall exists on title between No's 3 and 5 Hearn Street, that extends for a distance of 18.185m. 12 The building on the subject land is the middle dwelling in a row of three two-storey terraced homes. 13 No 3 Hearn Street abuts the land to the south, and shares a party wall with the subject property. It is on a triangular-shaped site and accommodates a two-storey brick terrace, with a two storey rendered brick addition to the rear. At No.7 Hearn Street to the north is a two-storey brick terrace dwelling, with corrugated iron roofing. Properties adjoining the site to the rear across White's Creek are Nos 119, 121 and 123 Albion Street. 14 The land is located within a residential area comprising mixed housing, including two-storey semi-detached or terraced dwellings and freestanding single-storey cottages. Relevant planning controls Leichhardt Local Environmental Plan 2000, (LLEP2000) 15 Under the provisions of the LLEP2000 land is zoned residential and the proposal as alterations and additions to a single dwelling house is permissible with consent. 16 To the rear of the land, White's Creek is 'unzoned' land under LLEP2000. 17 Other relevant planning controls are found in: · State Environmental Planning Policy No 1 - Development Standards, (SEPP1); · SEPP 55 - Contaminated Land (no issue raised under current proceedings); · Leichhardt Local Environmental Plan 2000 (LEP2000); · Leichhardt Development Control Plan 2000 (DCP2000); · Development Control Plan No 42 - Contaminated Land Management (no issue raised under current proceedings); · Development Control Plan No 38 - Waste Management; and · Draft Stormwater Requirements for Developments in Leichhardt.

18 The council prepared a compliance table: Relevant Standards and Provisions of LLEP2000 ClauseRequirements/standardDoes proposal comply? 7(3), 13(1)-(3), 17Requirement to give consideration to relevant General and Housing objectivesMerit considerations 19(2) & (3)General Provisions for the development of land - Floor space and landscaped area controls cl 19 p 14 Exhibit 8. Maximum FSR of 0.5:1 for, residential development in the Balmain density area. Proposed dwelling has a FSR of 0.96:1. An objection under SEPP 1 - Development Standards has been submitted. Minimum landscaped area for residential development is 40% of site area with 25% of landscaped area to be natural/ unpaved ground, permeable and allows for deep soil landscaping.No Yes

19 A SEPP 1 objection has been submitted for this proposal in relation to the council's FSR Development Standard. The council also prepared a compliance table under the DCP2000. Leichhardt Development Control Plan 2000, (DCP2000) Relevant provisions: Leichhardt Development Control Plan 2000, (DCP2000) ProvisionRequirements/standardDoes proposal comply? Part A 10.2.3Leichhardt Suburb profile - site is located in the Piperston Distinctive Neighbourhood. "Desired future character of the sub-precinct relevant to the proposal:Merit consideration/ performance-based ∎ "Maintain the character of the area by keeping development complementary in architectural style, form and materials. ∎ Maintain and enhance the predominant scale and character of dwellings in this precinct, consisting of mostly single storey Victorian and Federation-style dwellings, with more significant development in appropriate areas. ∎ Allow for contemporary development, which is complementary to the existing streetscape. Relevant Neighbourhood Controls: ∎ Building wall height is to be a maximum of 3.6m, unless an alternative maximum building wall height is prescribed. Other provisions: Part B1.1: Site layout; Part B1.2: Building Form, envelope and siting; Part B1.3: Car parking; Part B1.4: Site drainage and stormwater control; Part B1.5: Elevation and materials; B1.6: Front gardens and dwelling entries; Part B1.7: Fences; Part B1.8: Site facilities; Part B2.1: Building construction, thermal mass and materials; Part B2.2: Solar control - external window shading; Part B2.3: Insulation; Part B2.4: Natural ventilation; Part B2.5: Heating and cooling; Part B2.7: Water conservation and management; Part B2.8: Landscaping; Part B3.1: Solar access - residential amenity and energy efficiency; Part B3.2: Private Open Space; Part B3.3: Visual Privacy; Part B3.5: Acoustic privacy; Part B4.1: Alterations and additions to existing dwelling houses;Merit/performance based assessment required.

The proposal and its history 20 Development application No D12005/373 was lodged with the respondent council on 18 August 2005, and sought consent to alter and add to an existing terraced dwelling on the land. 21 It is proposed to demolish ground floor internal and external walls and to reconfigure the plan to provide kitchen, dining, living, family rooms, bathroom and laundry. 22 At the first floor level it is proposed to provide two bedrooms, a study and bathroom. Two additional sidelight windows are proposed on the street elevation at this level. 23 On the second floor there would be a bedroom with ensuite, and a new terrace facing Hearn Street. As part of these works it is proposed to raise the existing parapet facing Hearn Street by 300mm. The ridge height of the roof of the new second floor additions would be 30.065m AHD, with the new roof over the two storey portion at the rear of the dwelling would be 26.63m AHD. 24 The abutting dwelling at No.7 Hearn Street has a parapet height of 27.99m AHD. No heights have been provided for the adjoining dwelling at No.3 Hearn Street. 25 The proposed first and second floor additions are to be constructed with a zero setbacks to the northern and southern side boundaries. An existing 1200mm deep lightwell/ courtyard set off the northern boundary would be maintained at ground and first floor levels. 26 Materials and finishes of the new dwelling additions would be rendered and painted brickwork for all new walls, except for the northern wall of bathroom 2 at first floor level and the western wall of the second floor additions where new rendered lightweights walls are proposed. It is also proposed to render the existing face brick street facade of the dwelling. Also new timber sliding doors to the rear elevation are proposed at ground level. 27 It is proposed to re-use the existing internal living/dining room doors in the hallway or access to the internal courtyard. The roof would be sheeted in new Colorbond/cliplock roof sheeting. 28 The applicant sought pre-DA advice prior to lodgement of development application D/2005/373. At the meeting with the council's officers, the applicant was advised of those issues to be addressed, including FSR, architecture/ streetscape, building envelope and scale of development. Notification 29 On 12 September 2005, thirty-seven nearby owners and occupants were notified of the development application in accordance with the requirements of Leichhardt Development Control Plan No 36, and the council received two submissions from the owners of Nos 115 and 121 Albion Street. 30 The application was referred to the council's engineers for comments regarding car parking and drainage matters, and the council's architect planner for comment on architecture/urban design. The council's decision 31 When the appeal was filed, the council had not finally determined the development application and thus it is a deemed refusal. The hearing 32 The appeal was filed on 4 November 2005. 33 At the s 34-conference the Court heard evidence on behalf of the respondent council from Mr S Harding, consultant town planner. Ms Fiona Seeton, resident of No 123 Albion Street; and Ms Sally Penfold, resident of No 115 Albion Street also gave evidence on-site. Ms Seeton stated her only concern was in relation to overshadowing. She was of the opinion that the third-level (second storey) element would cause the overshadowing of her rear yard and rear wall. Ms Penfold said that the occupants of proposal would be able to look into the rear yard and any bedrooms in future extension of her property. She said that privacy was her main concern. 34 Mr Mc Connell, as applicant and owner, gave evidence. 35 On 10 January 2006, an amended statement of basic facts prepared by Ms J Lillie, Executive Planner of Leichhardt Council, was filed on behalf of the respondent. The issues 36 On 14 December 2005, the council filed a statement of issues. BULK, SCALE AND SITING 1. Whether the proposed floor space ratio of 0.96:1 and the distribution of building on the site is reasonable and justified. Particulars: The proposal is unacceptable in terms of bulk and scale and leads to an overdevelopment of the site given its non-compliance with the following controls: · Clause 19(2) of Leichhardt Local Environmental Plan 2000. (Maximum FSR is 0.5:1. Proposal is 0.96:1); · Building location zone and side setback controls under Part B1.2 - Building Form, Envelope and Siting of Leichhardt Development Control Plan 2000.

STREETSCAPE 2. Whether the proposal will have an adverse impact on the streetscape of Hearn Street and the visual appearance of the existing dwelling. Particulars: The proposed additions are unacceptable with regard to their impact to the streetscape and show little regard to the design of the existing dwelling itself given the proposed addition of a third floor to a two storey terrace; the raising of the existing parapet facing Hearn Street; and the provision of new windows to the street elevation at first floor level. The proposal does not accord with the objectives and controls under Parts A 10.2.3 -Piperston Distinctive Neighbourhood; B 1.5 - Elevation and Materials; and B4.1 - Alterations and additions to existing dwelling houses.

FLOODING 3. A detailed flood study for the site is required for the following reasons: Particulars: The property is located in close proximity to Whites Creek and as a result may be subject to flooding during significant storm events. Sydney Water has undertaken flood studies for White's Creek and should be contacted to obtain information on the flood characteristics affecting the site. Depending on the level of flood affectation experienced by the existing dwelling, a detailed Flood Study will be required to be submitted to the Court for assessment.

ECOLOGICALLY SUSTAINABLE DEVELOPMENT 4. Whether the development adequately addresses the Ecologically Sustainable Development objectives of the Leichhardt Local Environmental Plan 2000 and controls in Part B2.0 of DCP 2000. Particulars: A solar hot water service has not been specified, and a rainwater tank has not been nominated in accordance with the relevant Ecologically Sustainable Development objectives of LEP 2000 and the relevant controls set out in Part B2.0 of DCP 2000.

ISSUES RAISED BY OBJECTORS 5. Submissions received following notification raise the following issues: · Loss of privacy. · Streetscape. · Protection of rear vegetation. · Overshadowing. · Proposed works limiting future redevelopment. · Overdevelopment. 37 The following emerged as the salient issues: · Bulk, scale and siting; and · Streetscape. Amended Plans 38 The council notified the applicant of its misgivings by way of a letter dated 11 October 2005. Issues raised in the council's letter included non-compliance with the FSR, unacceptable built form and streetscape, ecologically sustainable development, (ESD), building location zone and flooding and stormwater management. 39 By letter dated 13 September 2005, the applicant was reluctant to provide Council with the necessary flood information, and the council requested that the applicant withdraw its application, and the applicant has proceeded to appeal. The evidence and findings 40 I have adopted the statement of basic facts and have been used that to prepare this judgment. I have considered the SEPP1 objection to the floor space ratio, (FSR) in cl 19 of Leichhardt Local Environmental Plan 2000, (LLEP2000) and concluded that it is not well-founded and as a result the application must fail. State Environmental Planning Policy No 1 objection 41 The underlying purpose of the FSR development standard is found in cl 17(a) of the LLEP2000: (a) to provide development standards to ensure that the density and landscaped areas of new housing (and by extension alterations and additions) are complementary 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, [Note: Exhibit 8, p 12, cl 17].

42 The desired future character is to: · maintain the character of the area by keeping development complementary in architectural style, form and materials; and · maintain and enhance the predominant scale and character of dwellings in this precinct consisting of mostly single storey Victorian and Federation style dwellings; and · to allow development "which is complementary to the existing streetscape, [Note: Exhibit 8, p A77 of the DCP2000].

43 Mr Griffiths submitted that his Honour Bignold J in Gillespies v Warringah Shire Council [2002] 124 LGERA 147 at p 163 when dealing with 'desired future character' stated it is not enough for any development to be 'not antipathetic to' but the words must be given the ordinary and natural meaning and full force and effect. 44 Mr Griffiths also referred to the planning principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 relating to compatibility, and the predominant scale, which in this case is 'low scale'. 45 To complement is "to complete and make perfect" according to the Macquarie Dictionary and it is something of the right "…quantity or amount that completes anything". 46 The underlying purpose of the FSR standard is to provide development standards that ensure the density, in terms of FSR… of new housing is complementary with and compatible with the style, orientation, and pattern of surrounding buildings taking into account the suite of controls in the DCP2000, to achieve the desired future character. Here the building on the land is already at a FSR of 0.67:1 and exceeds the standard of 0.5:1. If added to in the manner proposed, the FSR would be around 0.96:1 or almost double the permitted density. When viewed from Hearn Street, the proposal would not complete and make perfect the style and pattern of surrounding buildings. In fact it would add to the existing building in a way that would make it stand out and be incompatible with the row of similar buildings in the street and to the desired future character of predominantly single-storey buildings. 47 As well the proposal would not achieve the desired future character, as it would exceed the envelope control applied at the Hearn Street frontage of the building. The envelope control is part of the suite of controls in the DCP2000. 48 As a result, I am satisfied that compliance with the development standard in the circumstances of this case is not unreasonable or unnecessary and a development that more closely related to the existing density would be more compatible. As a result, I have concluded that the SEPP1 objection is not well founded and the application should fail. 49 Mr McConnell suggested that if the Court considered appropriate, he would be willing to amend the plans to achieve a greater degree of compliance. I explained that the plans could not be amended to such an extent as to achieve the desired future character. Bulk, scale and siting 50 The proposal would exceed the building envelope when applied to the Hearn Street façade and would not be of a bulk and scale compatible in the streetscape. 51 At the rear the proposal would extend beyond the building location zone, BLZ, and as a result cause unreasonable overshadowing to No 123 Albion Street rear yard and wall. It would be likely to reduce daylight to the adjoining dwelling to the north at No 7 Hearn Street and overshadow No 3 Hearn Street to the south. It would also tend to overbear the abutting properties both on the north and south as a result of the inadequate setbacks and bulk. Streetscape 52 The proposal to add a second storey that would be visible from Hearn Street would adversely impact on the streetscape of the row of three two-storey terraces and the wider streetscape as was seen on the site inspection and from the isometric sketches. 53 For the above reasons, the appeal is dismissed. Costs 54 As there were no submissions made in respect of costs, and I understand that each party will pay its own costs. Orders 55 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No D12005/373 lodged with the respondent council on 18 August 2005, to alter and add to an existing dwelling, at Lot 1, DP 196923, being No 5 Hearn Street, Leichhardt, is refused development consent.

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