Gordon v Leichhardt Council

DATES OF HEARING: 9/08/06, 1/12/06 and written submissions on conditions 2/12/06

APPLICANT Ms J. Gordon, litigant in person with her Agent Mr Kingsbury-Carr LEGAL REPRESENTATIVES:

RESPONDENT Ms J. Walsh, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10286 of 2006 Jennifer M Gordon v Leichhardt Council

JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act ("the Act") against the refusal of Leichhardt Council of a development application for alterations and additions to an existing dwelling and for a studio to be constructed at the rear of the subject site. Site and environs 2 The site is known as No. 18 Frazer Street, Lillyfield and has an area of some 454 sq m. It is on the eastern side of the street and is rectilinear in shape with a front and rear boundary of approximately 7.7 m and side boundaries of about 60 m. The site slopes from Frazer Street to the rear and there is a difference of some 4.5 m. At the rear of the site there is a townhouse development that gains access from Bayside Street. Adjoining the subject site on the northern boundary there are two properties: No. 6 Bayside Street is located adjacent to the rear half of the subject site and its rear boundary is about in line where the existing dwelling on the subject site extends to; and No. 20 Frazer Street is located next door to the existing dwelling on the subject land. 3 The subdivision pattern as shown in the attached zoning extract is varied ranging from the large lot where the townhouses are erected at the rear to the properties to the north that are about half the size of the subject site. To the south the lots are more consistent being relatively narrow and deep and with no rear access and a similar size and configuration to the subject property. 4 The existing dwelling on the site is a single storey Californian bungalow setback approximately 7.5 m from Fraser Street with carparking provided within the front setback area. Within the vicinity of the site there is a variety of development ranging from the townhouses at the rear to 2-storey dwellings opposite with garages built to the to the street. The houses to the south are a similar style to the subject property.

5 The dwelling at 6 Bayside is a single storey weatherboard dwelling located approximately 900 mm from the common boundary and the property to the north at 20 Fraser Street is a single storey dwelling that has been extended at the rear. The dwelling to the south No. 16 Fraser Street is a modified single storey federation style dwelling with an enclosed verandah and elevated carparking space located in the front setback area. Council has recently approved a single storey studio at the rear of this property. Proposal 6 The proposal is for alterations and additions to the rear of the existing dwelling on the subject site and for the erection of a 'retreat' on the rear boundary.

7 The proposed development has been amended since the hearing commenced such that the studio at the rear has been reduced in height bulk and floor space from a 2-storey building to a single storey studio. The proposed alterations and additions to the dwelling house have been lowered and reduced in overall roof height, scale and bulk. Planning regime 8 The site is located within the residential zone under the Leichhardt Local Environmental Plan 2000. The relevant development standards within the LEP include cl 19(2) and the relevant density area for the site provides a floor space ratio of 0.5:1.

9 Clause 19(3) sets out the minimum landscape area and for residential development this is "40% of site area and 25% of the landscaped area, or 10% of the site area is to be on natural or unpaved ground that is not overhung by or on top of any structure and is permeable and appropriate for deep planting".

10 The subdivision controls are contained within cl 19(4) and the minimum area requirement is 200 sq m, however, the development application does not propose subdivision and indeed the site would not be appropriate for subdivision.

11 The objectives of the plan in relation to housing include: a) To provide development standards to ensure that the density and landscaped areas of new housing 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.

12 The Leichhardt Development Control Plan 2000 is also a relevant document for assessment for the development application. The DCP contains numerous parts relevant to the assessment of the development application.

13 Part B of the DCP provides guidelines for building form, envelope and siting with the principle ":to plan and design alterations and additions to maintain and enhance the established scale and character of the streetscape; match and compliment existing building forms, private open space and landscaped areas. The rational is stated as: It is important that new development and extensions relate to the established setting and character of the neighbouring buildings, and the wider locality. This character is determined by the scale, massing, siting, size, height, spacing, form, intensity and use of surrounding buildings.

14 The building location zone guidelines are contained within this section and for front and rear setbacks the DCP states: In addition to the siting of a building, the setbacks proposed must respect existing setbacks on adjoining properties and the street alignment. They should ensure the efficient use of the site, protect the amenity of residents, maintain established private open space and landscape patters and re-enforce the character of the neighbourhood.

New developments or an extension to an existing dwelling is to be located within a building location zone (BLZ). This is a zone defined by the average front and rear setbacks of both the adjacent buildings and either side of the subject site. The BLZ is that part of the subject site where it can be reasonably expected that a building would be located.

The BLZ is determined only by the main buildings on the adjacent properties. The location of the front fences or intervening walls and similar sheds, garages, external laundries, toilets or other free standing structures on the site is not relevant in determining the BLZ.

Where it is proposed to build outside of the BLZ, the onus is upon the applicant to justify that the proposal is appropriate. Issues that must be addressed in justifying a building extending outside the BLZ include but are not limited to: * Visual aspect of the bulk and scale as viewed from the adjoining properties; * Amenity to adjacent properties * Location and retention of existing significant vegetation; * Compliance with applicable statutory controls, including FSR and minimum landscape area of site; * The existing streetscape and character of scale of surrounding developments… Issues 15 The plans have been amended since the appeal first came before the Court and the amendments resolved a number of issues initially raised by the respondent. An amended Statement of Issues in response to the amended plans of October 2006 was filed and these are as follows: Privacy impacts from additions to existing dwelling

1. The excessive bulk and scale of the proposed addition to the existing dwelling results in adverse impacts for surrounding properties.

(a) Overlooking of the private open space of the adjacent properties at 6 Bayside Street and 16 Frazer Street is likely from the proposed rear facing balcony which is contrary to Parts B3.3 - Visual Privacy and B3.5 - Acoustic Privacy of the DCO

(b) Overlooking from the new window to the family room in the southern elevation and the window to the kitchen in the northern elevation. This issue could be satisfied by the imposition of conditions 3(b) and (c).

2. Concerns raised by the objectors, in particular: (a) length of extension to existing dwelling is much longer and not in line with the other houses on that side of the street. (b) The proposed balcony would result in an invasion of privacy to the properties at 4 and 6 Bayside Street.

(c) Potential for dual occupancy of rear building as it has a full bathroom.

(d) Rear building is to large and should be setback at least 900mm from each boundary.

(e) Overshadowing from rear building and proposed trees adjacent to that building.

(f) Owners of 6 Bayside Street object to the proposed drainage easement.

Evidence 16 The original development application was advertised and notified to surrounding properties and in response six (6) objections were received.

17 On the first day of the hearing the Court heard from a number of resident objectors on-site and carried out an inspection. The objectors included Mr Richardson of 14 Frazer Street. He was concerned about loss of outlook and the fact that the rear dweling would be used as a dual occupancy with demand for on-street parking increased.

18 Mr Losurdo of 17 Frazer Street was also concerned about dual occupancy and view loss and that a skillion roof would be more in keeping.

19 . Mr & Mrs Giogia, the owners of the cottage with frontage to No. 6 Bayside Street, are concerned about the impact of the adjoining rear building to be erected on the subject site in terms of their light and impact on privacy to their property. They are also concerned about the extent of the extension on the existing dwelling and overlooking of their rear yard.

20 In summary the objectors concerns relate to the length of the extension into the rear yard of the existing dwelling and the impact this would have on the privacy and amenity of their properties. Many of the residents were also concerned about the building at the rear of the site being used as a dual occupancy and the impact this would have on the street and the area.

21 On behalf of the council Ms Deborah Laidlaw, consultant town-planner gave evidence to the Court and provided statements of evidence on the original proposal and the amended proposal.

22 The applicant is self represented in these proceedings and Mr Kingsberry-Carr, her agent provided statements in support of the application.

23 Ms Laidlaw provided a report on the plans originally before the Court where she raised a number of fundamental issues in particular with respect to the retreat that is a separate building at the rear of the subject site Ms Laidlaw states:

The proposed grandparents retreat is provided with its own bathroom/laundry and what appears to be a kitchen at the ground floor with a separate bedroom area at the first floor.

With a floor area of approximately 95 sq m it is of a scale commensurate is that of a separate dwelling, capable of operating quite independently of the main dwelling house adjacent to Fraser Street.

24 Ms Laidlaw was concerned that the space as designed in the original rear building could be used for independent occupation with a number of consequences in terms of privacy and separate open space areas for the front dwelling and the rear building.

25 She commented that the approval for the adjacent property at No. 16 Fraser Street is for a rear studio described as a workshop with a total floor area of some 54 sq m wholly contained in a single storey building with a low pitched roof and with the dwelling on that subject site it would still only achieve an FSR of 0.41:1 below the 0.5:1 allowed in the LEP. In contrast to this on the subject site the rear extension of the dwelling plus the retreat at the rear would yield a floor space of some 0.59:1.

26 Ms Laidlaw also comments the side setback controls limits the height of developments relative to the distance setback from the boundaries. For the rear building it has nil boundary setback to side boundary setbacks whereas a 1.2 m setback would be required and for the wall height of the rear extension to the existing dwelling this would require a setback of some 2.5 m however that she comments that the proposed two storey extension continues nominal setback to the northern boundary to approximately 400 mm.

27 In her conclusion Ms Laidlaw stated: That the proposal represents a significant breach of the FSR standard and under LEP 2000 it offends the objective of the standard…It also contravenes the suite of controls in the DCP, including the BLZ and building setback controls and typifies the style of development, being one that arises to secure views rather than follow topography, that the distinctive character statement cautions against.

The proposal also offends the implied objectives of the FSR standard relating to the control of bulk and scale and the latest impacts and in this regard it proposes significant impact of visual bulk on views, privacy, shadowing, in different combinations on No. 14, 16 and 20 Fraser Street and 6 Bayside Street.

28 The applicant advised the Court that the 'without prejudice' conditions were only received the day before the hearing date and this did not provide sufficient time for her to consult her architect. As such the applicant sought an adjournment to respond to the conditions. The 'without prejudice' conditions specified a number of design changes.

29 On the afternoon of the first day of the proceedings the applicant also requested the Court to provide preliminary views on the plans. In my preliminary assessment the application raised a number of concerns because of the unreasonable impacts on adjoining properties. With respect to the rear building I expressed concern about its size height and bulk and that any rear building should be single storey and ancillary to the main dwelling, (as proposed on the adjoining property at no.16 Frazer Street). I also indicated that the extent of the rear extension for the existing dwelling should be reduced in height and length.

30 As such the applicant sought an adjournment to submit amended plans and the respondent did not oppose this course of action and the applicant undertook to pay part of the re-assessment costs of council's expert consultant in town planning. Amended Plans 31 The amended plans were subsequently submitted and notified to those who had lodged objections to the original application. On the matter resuming in Court, Mr Gioia also gave further evidence and expressed concern about the extent of the development and privacy impacts on their cottage at 6 Bayside Street. .

32 Ms Laidlaw provided a supplementary statement of evidence on the amended plans and the applicant tendered the response prepared by Mr Kingsbury-Carr.

33 In Ms Laidlaw's statement she notes that the set of amended plans are partly consistent with the without prejudice' conditions provided by the respondent. In particular she states as follows: o The ground floor lounge and lower ground floor dining room proposed as additions to the existing dwelling house, have been redesigned and moved approximately 2 metres in an easterly direction, so that the western wall is at the same rear setback as the verandah of No 16 Frazer Street. The floor of the lounge has been reduced to RL 11.56 and the floor of the dining room has been reduced to RL 8.86. The roof ridge height has been reduced by 690mm to RL 15.71. o The roof over the kitchen has been made into a flat roof, with a maximum height of RL 14.25 (for comparison the existing rear extension has a roof reducing from a gutter level of RL 14.22 to RL 12 in the same vicinity). o The proposed first floor to the grandparent's retreat, including the dormer windows, has been deleted and the roof pitch has been reduced to 20 degrees, springing from a level of RL11.2. No internal laundry or kitchen facilities are indicated in the grandparent's retreat. A small single level extension to the originally proposed retreat has been provided on the southern side. 34 With respect to the changes sought by Council not incorporated in the amended plans she states as: o The balcony at the western side of the ground floor living room of the extension to the existing dwelling was required to be deleted and this is shown as retained. o The new windows in the southern elevation of the existing dwelling have not been shown with fixed obscure glazing to a height of 1.6 metres above finished floor level. 35 Ms Laidlaw also identifies matters not incorporated in the plans originally before the Court, as including: o A small extension to the ground floor of the retreat; and o A window shown in the northern kitchen wall. 36 Ms Laidlaw provides the following comments on the balcony as shown in the amended plans. It was required to be deleted … for reasons relating to the privacy of the neighbour at 6 Bayside Street, and secondly to reduce the extent to which the development extended beyond the Building Location zone. Under the without prejudice' conditions, a concession was afforded the applicant in allowing the rear/western wall of the extension to align with the verandah of No. 16 Frazer Street, rather than (as should strictly be the case) the rear wall of that dwelling. The protrusion of the proposed balcony beyond this concessionary alignment is therefore particularly unreasonable.

Accordingly, it is recommended that the drawings be amended to provide that the balcony at the western side of the proposed dining room extension be deleted. An alternative design could be supported in which: (a) the balcony is set inside the side walls of the proposed dining room extension, such that the dining room extension, incorporating any such balcony, does not project westwards of the verandah of 16 Frazer Street; or (b) a balustrade is constructed immediately upon the western wall of the proposed dining room, across the opening for the proposed bi-fold doors. I would not object to the use of an awning at ground and lower ground floor for sun protection, providing that this was non traffickable and constructed in materials such as timber or metal (not masonry) and of minimum dimensions required to provide weather protection. 37 With respect to the windows on the southern elevation Ms Laidlaw comments: The new window is not shown with obscure glazing, however this could be required by condition. An alternative means of providing reasonable privacy could be achieved by a requirement for the single large window to be replaced with two small windows each being offset (ie not opposite) any window in the northern elevation of 16 Frazer Street. 38 In Ms Laidlaw's opinion the amendments to the retreat are satisfactory subject to a condition on use and she states: I do not have a concern with the small extension eastwards for a bathroom. The purpose of requiring deletion of the laundry facilities from the original proposal, however, was to avoid it becoming a separate self contained unit, and with the shower incorporated in the currently proposed bathroom, it remains a possibility that pressure for self contained use may arise. This should be permitted only in light of the other conditions imposed to prevent use as separate self contained accommodation. 39 Ms Laidlaw provides comments on the now proposed window for the kitchen. She is of the opinion this would allow overviewing of the yard of 20 Frazer Street. This window was not shown as part of the original plans. It may be existing, however the level of activity/use of this area at the rear will increase under the current plans, and I do not believe the privacy impact would be reasonable on No. 20. 40 In Ms Laidlaw's opinion 'in terms of the DCP, the proposal continues to represent a variance to the Building Location Zone (BLZ), however she comments as follows: having regard to the circumstances of this site, I believe this can be supported, providing that the balcony is deleted/amended, in the manner noted above".

41 With respect to the amended rear building she is of the opinion: The reduction in height of the rear two storey extension, as well as the removal of the first floor of the retreat will effect a reduction in shadow impact to No. 16 Frazer Street, including impact on both the rear yard and the skylights to its approved studio. The removal of the balcony and required treatment to windows on the southern elevation will address privacy issues in relation to this property. The removal of the first floor of the retreat should allow at least part of the water view to be retained from this property, and from No. 14 Frazer Street.

Likewise, the removal of the balcony (or amendment), reduction in height of the two storey extension and removal of the first floor of the retreat will bring privacy and bulk impacts on No. 6 Bayside Street to within reasonable bounds…

The removal of the first floor of the retreat addresses the concern I held as to the streetscape impact to Bayside Street. 42 The applicant provided responses to Ms Laidlaw's supplementary report, the amended statement of issues and the 'without prejudice' conditions. I have considered these together with all the other evidence to the Court, including the site inspection, in my assessment of the application.

43 In summary the applicant contends that the building location zone as defined by Ms Laidlaw is incorrect. The applicant referred to discussions with an officer of Council in interpreting the position of the BLZ and this does not require the deletion of the balcony. The applicant also submitted that the developments is compliant with the DCP provisions and that it is unnecessary to further amend the plans..

44 The applicant maintains that there are no privacy or adverse impacts created by the proposal and states that: the removal of the balcony would increase privacy impacts on number 6 Bayside St. …and the balcony protects the whole facade from hot western sun and adverse weather conditions… and softens the built form of the extension and is a more elegant architectural finish to the bare masonry as it is compatible with the style, orientation and pattern of nearby buildings .

45 The applicant further submits that the rear buildings of numbers 14 and 16 Frazer and 6Bayside streets have either large rear decks or covered areas for dining and leisure and all of nearby sites have rear patio is attached to the main buildings… the balcony will facilitate shaded airflow to the dining room interior.

46 The applicant made submissions on the respondent's conditions. In particular the use of the rear retreat and provided the following alternative. that the proposed retreat at the rear of the site is to be ancillary to the residential use of the front dwelling house. No approval is given for the use of the retreat for dual occupancy.

47 With respect to the landscaping condition the applicant seeks to widen the selection of plants to those provided in councils list of suitable species. Assessment and findings 48 The original plans had an FSR of 0.59:1 and the proposed amendments, according to the applicant's calculations, now comply with the LEP standard for FSR of 0.5:1 as contained in (Clause 19(2). The landscaped area for the amended plans continues to comply with (Clause 19(3) as cited earlier in this judgment. Therefore an objection under State Environmental Planning Policy No.1 to vary the development standards as contained in the LEP is not required for the amended plans.

49 I have proceeded to assess the amended application on its merits under section 79 C. of the Act and this includes having regard to councils planning controls including the DCP which must be given proper and genuine consideration. In this regard is important to read the controls together having regard to the circumstances of individual cases.

50 At the end of the proceedings before the court the amended plans addressed a significant number of the councils issues initially raised to the point where the issues were distilled to whether further amendments are required by way of condition.

51 There was a great deal of discussion during the proceedings about three position of three BDL said for this site. I recognise that the configuration of adjoining properties including the subdivision pattern and built form on adjoining lots makes this exercise more complex. However, at the end of the day irrespective of where the line is placed on the site the proposed development must also be assessed on its merits and this includes whether the impacts on adjoining properties is reasonable in the light of the objectives of the LEP and DCP, including the BLZ.

52 The juxtaposition of the subject site with the adjoining properties requires careful consideration, on the one hand the site is much larger than the properties to the north however the relationship of the subdivision pattern and built elements requires a holistic consideration of the proposal of the rear retreat and the extensions to the existing dwelling. In particular the impacts on number 6 Bayside St.

53 In my assessment having regard to adjoining buildings and the extent of extensions it would be unreasonable to allow a balcony of the size shown on the plans because of the impact on number 6 in terms of reasonably maintaining the amenity of this dwelling in terms of the imposition of the built form and when viewed from number six and aural and visual privacy. In this regard I am persuaded by the evidence of Ms Laidlaw and also landscaping should not be relied on to provide amenity. During the proceedings the applicant was given the opportunity of reducing the size of the living dining area to provide the same size balcony and to allow the extension not to protrude further than the partially enclosed verandah of no.16 into the rear yard. I consider this line to provide what should be generally regarded as the BLZ for the subject site.

54 On balance I have decided having regard to the requirement to provide partial protection from the elements of weather and to reasonably maintain the visual and aural privacy for No 6 having regard to the intensity of use of the balcony but to still allow for increasing the amenity of the living dining area upstairs that the balcony be reduced in depth to a maximum of one metre from the face of the wall. In my assessment this is consistent with the rational of the DCP and the objectives of the LEP noted above. Accordingly the condition reflects my decision.

55 I agree with Ms Laidlaw's evidence that the rear studio is satisfactory in terms of its size and design provided a condition is attached to the consent for its use.

56 For the condition relating to landscaping I am satisfied with the additional wording of the applicant to provide greater choice.

57 The issue of a need for the applicant to obtain a drainage easement is dealt with as a deferred condition. It is understood that the applicant proposes to make an application under s40 of the Act to the Court in this regard.

58 If an application for an easement is made under s 40 of the Land and Environment Court Act then the owners of any properties through which the easement is proposed are given the opportunity to be heard in such proceedings and the questions of whether the easement is reasonably necessary and compensation is considered at that time. Section 40 of the Act provides the jurisdiction of the Court to make an order for an easement and this function is only exercisable by a Judge of this Court. The relevant provisions are cited below to assist in an understanding of the matters to be addressed at the s40 application stage that relate to some of the objectors concerns.

59 The Land and Environment Court Act s 40 contains the following provisions:

(1) If the Court has determined to grant development consent on an appeal under s 97 of the Environmental Planning and Assessment Act 1979 , the appellant may apply to the Court for an order imposing an easement over land.

(2) The Court on application under subs (1), may make an order imposing an easement over land if it is satisfied that: (a) the easement is reasonably necessary for the development to have effect in accordance with the consent, and …

(c) requires the Court in making an order to impose an easement to be satisfied that the owner of land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement and

(d) all reasonable attempts have been made by the applicant for the order to obtain the easement on easement having the same affect but have been unsuccessful…

(4) Before making an order under this section the Court must notify the owner of the land affected by the proposed easement …

(5) An owner of land affected by the proposed easement … (a) may object to the proposed easement or works and (b) is entitled to appear before the Court in support of the objection

(7) The Court is to provide in the order for payment by the applicant for the order to such persons as the Court specifies of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (8) The cost of the proceedings, insofar as they relate to an order sought or made under this section are payable by the applicant for the order subject to any order of the Court to the contrary.

60 Accordinly on the basis of my assessment the formal orders in this appeal are:

1. The appeal in respect of the property known No. 18 Frazer Street, Lilyfield is upheld.
2. The development application submitted to Leichhardt Council and as amended is determined by the granting of a deferred commencement consent and subject to the conditions contained in Annexure 'A'.
3. The exhibits with exception of Exhibits 11 and K are returned to the parties.

J.S. Murrell Commissioner of the Court ljr

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