Groenewegen v Leichhardt Council

Land and Environment Court (NSW)|2007-04-30|Before: Ms J

Background. 1 This appeal was lodged against the deemed refusal of a s 96 application to modify conditions of consent imposed on a development application for alterations and additions to the rear of a 2-storey dwelling at 12 Annandale Street, Annandale. In particular the following condition 2 (c): The additions to the rear of the building is to have a minimum setback from the boundary of 10 Annandale Street of 900 mm at ground and first floor level.

2 For the appeal, a number of issues were identified in a Statement of Issues (31 January 2007), which can be summarised as follows: o excessive floor space ratio (FSR), involving consideration of a SEPP 1 Objection to the FSR development standard, o consistency with the general and heritage conservation objectives in the LEP, o non-compliance with the building envelope and side setback controls, resulting in amenity impacts on the adjacent house (No 10) in respect of loss of sunlight and daylight, visual bulk and scale, and potential structural/drainage impacts resulting from a zero side boundary setback, o public interest and issues raised by objectors including nil site setback, impacts upon foundations and detrimental impact to side wall, potential structural/drainage concerns, loss of sunlight and daylight and visual impact from bulk and scale.

The Site. 3 This site is described as Lot A in DP 909463 and Lot 1 in DP 104984 and it has a total area of 180.4 sq m and a combined frontage of 6.79 m to Annandale Street.

4 The site presently contains a 2-storey brick residence. The surrounding locality is predominantly residential and the neighbouring properties comprise: o To the south; the subject site borders No.10 Annandale Street, which contains a modified 2-storey rendered Victorian Italianate style dwelling built to the north-eastern boundary and double garage accessed from Albion Street. o To the north; the site has its northern boundary with the dwelling located at No.14 Annandale Street. This dwelling comprises a 2-storey terrace style dwelling with partly enclosed filigree lace balcony at the first level. The proposal. 5 The proposed alterations involve: o construction of a ground floor verandah and first floor balcony on the street elevation, o reinstatement of doors and windows within the street elevation, o bricking up of 2 windows within the southern elevation, o construction of a 2-storey addition at the rear of the existing dwelling which will extend from the northern property boundary to the southern property boundary (i.e. zero setback). The additions are setback 12.53 m from the street, o the conversion from 2 flats into 1 dwelling via internal alterations.

Planning Controls. 6 Leichhardt Local Environmental Plan 2000 (LEP); under which the site is located within the Residential zone and is within a Heritage Conservation Area. The proposal is permissible with consent. The LEP contains a number of controls of which the following were identified in the statement of basic facts as relevant.

7 Clause 13 details the general objectives for a number of matters including (1) ecologically sustainable development, (2) built and natural environment and (3) amenity and transport and access. Accordingly, cl 13 (2) states: (2) The general objectives for the built and natural environment and amenity is to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area to: a) protect and enhance the areas natural features, character and appearance, and b) protect, conserve and enhance the areas heritage, and

c) provide an environment meeting the principles of good urban design, and

d) maintain amenity and contribute to a sense of place and community, and … 8 Clause 15 details the heritage conservation considerations and objectives

9 Clause 16 (8) details the assessment matters relative to development in the conservation area.

10 Clause 17 contains the housing controls, which includes the following relevant objectives: a to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of the surrounding buildings, works and landscaping and take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character,

b to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents,

c to provide for a minimum residential allotment size in order to protect the areas diverse subdivision pattern and to ensure the orderly and economic use and development of residential land,

d to provide a diverse range of housing in terms of size, type, form, layout, location, affordability, and adaptability to accommodate the varied needs of the community, including persons with special needs…

11 Clause 19 (2) allows a range of floor space ratios (FSR's), with a maximum prescription of 0.6:1 in this area of Annandale.

12 Clause 19 (3) deals with landscaped area and requires: (a) the minimum landscaped area for residential development is 40% of the site area, and (b) 25% of the landscaped area required under paragraph (a): i. is to be on natural or unpaved ground that is not everhung by or on top of any structure, and ii. is to be permeable, and iii instantly appropriate for substantial deep planting..

13 State Environmental Planning Policy No 1 - Development Standards

14 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

15 Leichhardt Development Control Plan 2000 (DCP). The following controls were identified as relevant in this matter: + Part A4.0 -Urban Form and Design. + Part A5.0 Amenity. + Part A10.3.2 (Annandale Street Distinctive Neighbourhood, Annandale), the following suburb profile details: wherein; The desired future character, urban form objectives include: promote land uses and urban design that enhances and contributes to the character and identity of the Neighbourhood, whilst protecting heritage items and conservation areas that combine to create that character;

maintain and enhance the scale and character of existing dwellings, consisting of mostly single storey Federation-style dwellings and two-storey Victorian terraces;

ensure that the predominant subdivision pattern and size is maintained;

promote consistent rhythm within the streetscape created by the regular allotment sizes, predominance of detached and semi-detached dwellings and prevalence of hipped and gabled roof forms… Part B1.2 -Building form, envelope and siting. The principles are to:

Plan and design new housing, and additions and alterations to existing housing, to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscaped areas.

The siting and orientation guidelines provide that:

An important element of an areas character is the amount of space around and the distance between buildings. New buildings and alterations and additions to existing buildings need to be designed so they respect the proportions of the neighbouring developments, the streetscape and amenity of neighbouring residents.

A number of siting and other controls are provided and the side setback guidelines state:

Setbacks are a key component of the streetscape. They provide rhythm and add character to residential streets, provide views and glimpses of local and distance landmarks and distance from public places and can provide access to the rear of properties.

Setbacks also provide amenity to existing and proposed housing through the maintenance and provision of privacy, ventilation and sunlight access. As access to sunlight and privacy can be severely affected by tall buildings erected close to or on side boundaries, greater setbacks are required for taller buildings than for low scale single storey buildings…

Council encourages a varied side setback in order to provide articulation and relief to side elevations and as well as enhance solar access, privacy and air circulation to internal living spaces and adjoining development.

The side setback provisions require sufficient width, and design such that the following issues are properly addressed to the satisfaction of Council:

The requirements of the Suburb Profiles; Ensure that the development is sympathetic to and respects the rhythm of the streetscape created by the lot width and side setbacks of adjoining development; Amenity concerns of adjoining properties, in particular solar access, visual privacy, noise transmission and air circulation; Existing external access to the rear of the property with a minimum width of 900mm is to be retained; and The retention and enhancement of views to significant and local landmarks and vistas from a public place through gaps created by existing side building setbacks.

Council may allow buildings to side boundaries where:

ii, Higher proportions of buildings are setback in accordance with the above control;

iii. The bulk and scale of development is minimised by reduced floor to ceiling heights;

iv. The potential impact on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised;

v. Reasonable access is retained for necessary maintenance of the adjoining properties. o Part B1.5 -Elevations and materials. o Part B3.1 - Solar Access - Residential amenity and energy efficiency. o Part B4.1 -Alterations and additions to existing dwelling houses.

16 Development Control Plan No 38 - Waste, Avoid, Reuse, Recycle.

The evidence. 18 Detailed evidence on behalf of Council was presented by Mr A. Smith (consulting town planner) and Mr S. McDonald (consulting town planner) on behalf of the applicant, resulting in their joint planning report - Exhibit 3. Other evidence was presented by Mr C Liseo on behalf of the owners of No 10 Annandale Street and Mr M Caine from 63 Albion Street, Annandale.

19 In assessing this appeal, I note that one of the issues concerns excessive floorspace, in terms of the proposals FSR of 0.89:1 exceeding the prescribed FSR development standard of 0.6:1. However the parties agree that this matter was determined in granting consent to the initial application, where a SEPP1 objection to this exceedence was allowed. Consequently, the approved development, as conditioned by Council would have a marginally reduced FSR of 0.86:1.

20 Notwithstanding this, the planners addressed this issue and agreed that the proposal complies with the cl 17 (b), (c) and (d) objectives. Although they did not agree on whether the proposal satisfied the 17 (a) requirements in respect of density, bulk and streetscape impacts.

21 According to Mr Smith, the main density issue relates to the extent of overshadowing, which is acceptable. In respect of the other bulk and streetscape impacts, he considers a 900mm setback would be a better solution and result in a development more consistent with the character and rhythm of existing terrace-style built form in the immediate locality, which maintain setbacks on side boundaries. He also says that the relevant properties to assess "visual catchment" are Nos 10 to 18, within which there is a consistent rhythm of upright detached terrace house forms and the current proposal seeks to emulate this form of development.

22 Consequently, Mr Smith suggested an alternative option involving the imposition of condition for the setback of the upper level bedroom, together with a reduction in floor area. Some discussion of this option took place in the hearing.

23 Mr McDonald said that: o In relation to "density" and consideration of any potential amenity impacts, solar access is an important consideration. However in this case the imposition of condition 2 (c) makes no difference to the access to sunlight and daylight to the side windows. o The proposed draft condition to delete a major part of the first floor is unreasonable and inappropriate, given that a 2 storey extension is in keeping with the predominant character and form of development in this location. A 2 storey extension has been accepted by the Council throughout a long history of the matter. o The proposed extension, when viewed from the street and where possible to be viewed from the adjoining property is of a lesser scale than the existing development on the site. o In terms of "bulk" in relation to the neighbouring property, condition 2 (c) will make no material difference. o The proposed nil setback for the extension is recessed within the site, 12.4m from the street alignment and 10m from the building alignment. Therefore, the new work will not "read" from the street and will have no negative impact on the streetscape. o The visual catchment includes Nos 10 - 18, but is considerably wider along both sides of Annandale Street. In particular, the relationship between Nos 10 and 12 is different from that existing between Nos 12 - 18. No 10 is a building of different architectural style and from and breaks the regularity exhibited by the sequence of Nos 12 - 18. o In any event the recessed nature of the proposed extension ensures that it will be very much subservient to the predominant built form read along the street. 24 The other associated issues concern the proposals compliance with the heritage conservation objectives. The planners agree that the application and consideration of the general objectives and heritage/conservation objectives relates principally to an assessment of the streetscape and that as the proposal is setback some 10m from the front boundary and this section of Annandale Street has a mature, landscaped character, then the visual catchment of the additions is very narrow.

25 Consequently, Mr Smith says that the best outcome in respect of compliance with the LEP 2000 objectives is the imposition of condition 2 (c) requiring the provision of a 900mm setback in order that the existing rhythm of detached terrace form setbacks of the side boundaries is maintained.

26 Against this, Mr McDonald in supporting the application says that compliance with the heritage conservation objectives is achieved through the recessed and subservient form of the extension, set well back from the street. Also, the built form character in the immediate area includes setbacks at the street alignment and this is what is "read" from the public domain, together with upright buildings in landscaped settings. 27 The other issues concern objections raised by neighbours. Mr Liseo objected to the proposal because the proposed 2-storey additions would reduce the amenity of No 10 due to increased shadowing and loss of outlook to the two existing windows on the common boundary. Also, he considered that the view of the bulk and scale of the additions on the boundary, from his back yard was unacceptable. Importantly however, the proposal to connect the additions onto the existing No 10 wall was considered unacceptable because it would likely exacerbated drainage and moisture problems, which currently exist in this dwelling. Conclusions. 28 Having considered the evidence, the submissions and undertaken a view I do not consider that this application for modification of condition 2 (c) merits consent.

29 It is apparent from the view that this section of Annandale Street between No 10 and 18 forms a distinct visual catchment area. The vast majority of these dwellings in this catchment area have a side boundary setback, on at least one side of the dwelling, providing some form of viewing corridor or gap. In my assessment, this is a significant element that contributes to a consistent rhythm within the streetscape and allows observation and glimpses of mature vegetation through to the rear of the properties, which the development controls seek to maintain.

30 The existing dwelling on No 12 has a side boundary setback in the order of 2.2m and allows a considerable view corridor between the 2-storey buildings. The proposed zero side setback of the proposal significantly reduces this viewing corridor and is therefore a negative feature in terms of compliance with the development controls, in my opinion. 31 For the proposal to achieve the desired FSR of 0.89:1, which is an exceedence in the order of 48%, it is necessary to adopt the zero side setback. In my assessment, the closing in of the side gap does not enhance the established scale and character of the streetscape or adequately respond to the " important element " of leaving space around and separation between buildings, specified in Part B1.2 of the DCP.

32 In reaching this conclusion, whilst I accept Mr McDonalds evidence that the requirement for the 900mm setback makes no difference to the solar access for No 10 accordingly I then consider this a neutral factor.

33 However, I do not accept his opinion that with the provision of extensive landscaping in the front/side setback area, the new work will not read from the street and there will be no negative impact on the streetscape. As he observed, No 10 is of a different architectural style and its streetscape presentation will be diminished, in my opinion by the proposed abutting extension of No 12. Under these circumstances, I consider there is a reasonable public interest case to adhere to the council requirement, for the maintenance of a 900mm side boundary setback to maintain a " gap for vistas", which outweighs the personal interest of closing the side boundary setback. 34 The issues identified for the appeal include the objections raised by neighbours. In my assessment, the objections raised by Mr Liseo concerning the water/drainage control for the connection of the proposed building onto his properties northern wall was not satisfactorily addressed. After some discussions, I understand that the applicant preference is to abut the common wall of No 10 and this will necessitate some 'flashing', or alternative measure to prevent the ingress of moisture. During the appeal the applicant responded to this concern and offered a draft condition to the effect that:

'prior to the issue of a Construction Certificate a suitably qualified and practising structural engineer is to prepare a detailed design of the proposed waterproofing and treatment of the southern wall of No 12 where it abuts the northern wall of No 10 Annandale Street, with the purpose of ensuring the ongoing protection and maintenance of the wall at No 10…' 35 However, Mr Lisoe objected to any attachments or work on this wall, which would likely exacerbate existing moisture problems, which he says affects the health of the residents.

36 Insofar as the applicant made submissions that this specific issue was not properly particularised, nevertheless I am satisfied item 4 (c) and 5 of the statement of issues identifies potential structural/drainage impacts and concerns resulting from a zero side setback. The planners acknowledged this, concluding that conditions of consent could be imposed to address this issue.

37 Whilst I readily accept that an appropriate technical solution can be provided, nevertheless the applicant's proposal indicates that this solution will involve work on the neighbouring property (No 10). As no owners authority to allow this work was provided and Mr Lisoe did not agree to such work, then I am not satisfied at this stage that the imposition of a condition as above, would enable satisfactory work to be undertaken. Accordingly I consider this a further negative aspect of the proposal, but not of determinative weight.

38 In so far as other submissions were made of behalf of the applicant that the proposal could provide a minimal setback to allow maintenance of the wall, this extent was not defined to enable its assessment. Under these circumstances, the requirement for a minimal 900mm side boundary setback minimises moisture and drainage impacts on No 10 and also allows view opportunities and pedestrian access to the rear of the property, which is considered desirable in terms of DCP provisions. 39 After the close of the cases and final submissions, the applicant sought and was granted leave to present further short, supplementary written submissions regarding aspects of the appeal, which it did not consider had been particularised in the statement of issues. The respondent was granted the opportunity to provide a written response.

40 The applicant made further submissions that Mr Smith's alternative proposal should not have been ventilated. However, this alternative proposal was included in his statement of evidence and responded to by Mr McDonald, on behalf on the applicant. After examination of this alternative in the hearing, Council did not pursue it and in any case, the Court has discretion on what weight is to be assigned to it after hearing any submissions on relevance. In the ultimate, no weight was given to this alternative proposal.

41 Further submissions were made in relation to the structural and drainage issues, together with the concerns about maintenance and protection of part of the northern wall of No 10, which the applicant contends was not particularised as an issue in the proceedings, nor were associated draft conditions provided by the council. However I am satisfied that these issues were reasonably identified initially and that the matter of conditions was dealt with during the hearing, as occurs in many appeals where the appropriateness and reasonableness of various amended conditions are discussed. 42 In determining this issue, I accept that some form of protection is reasonably necessary and that a technical solution is possible but as this solution most probably involves some work on the neighbouring property, then the neighbours consent is required, to indicate that imposition of such condition is achievable. As I have stated previously, the absence of this consent is a negative feature of the application, however there are other merit matters that result in the refusal of the application.

43 Ms Reid in responding to the additional submissions drew the Court's attention to the planning principles in the matter of Galea v Marrickville Council [2005] NSWLEC 113, where the Senior Commissioner considered the issue of reasonable setbacks between dwelling houses as follows: 17. To test whether building on the boundary is appropriate, the following questions should be asked: o Is the street characterised by terrace housing?

Building to the boundary is likely to be appropriate in street where the existing building form is terrace houses or villa homes, ie where building to the boundary follows existing patterns of development. o What is the height and length of the wall on the boundary? Short lengths of single storey walls (such as garages) are usually acceptable on the boundary. o Has the applicant control over the adjoining site(s) or the agreement of the owners? Where the applicant has control over the development of the adjoining sites or the owners agree to a wall on the common boundary, such walls are likely to be appropriate. o What are the impacts on the amenity and/or development potential of adjoining sites? Building to the boundary may be appropriate, even where the above tests are not answered favourably, providing it can be shown that the wall on the boundary does not diminish the amenity for the development potential of the adjoining site. o Are there arrangements in place for the maintenance of the wall or gutters? The question of maintenance should be considered at the time of the development application to avoid disputes later.

43 Adopting and applying these principles to the present case, I note that the applicant has not established that satisfactory arrangements have been made in respect of the building to the common boundary because the agreement of the adjoining property has not been obtained and there are no maintenance arrangements in place, so as to avoid future disputes. These deficiencies confirm my view that this is a negative aspect of the proposal.

44 In the ultimate, I am satisfied that the proposal results in a dwelling of significantly larger bulk and scale than allowed by the FSR development standards. This scale of development necessitates the extensions and additions achieving a zero setback to the adjoining building No 10 Annandale Street, which effectively eliminates any side setback 'gap'. I consider that this is likely to unreasonably impact on the consistent rhythm within the streetscape and is not consistent with the desired future character provisions of the DCP. Also, the proposal does not demonstrates reasonable compliance with the aforementioned 'boundary setback' principles.

45 For these reasons then, I rely on Mr Smith's conclusion that the proposal for deletion of Condition 2 (c) is unreasonable in the circumstances, primarily for streetscape and character/heritage conservation reasons and accordingly a minimum 900mm setback should be provided. I also consider it reasonable to impose council's additional condition requiring the consolidation of the two existing allotments.

46 Therefore the modification application is refused and new condition 2 (d) imposed. Court Orders 1 The appeal is dismissed.

2 The s 96 Modification application to delete condition 2 (c) of consent number 2004/490 is disallowed, The following additional condition is imposed: 2 (d) The two existing allotments shall be amalgamated into one allotment, and evidence of the amalgamation and the register of a Plan of Subdivision shall provided to Council prior to the release of any Construction Certificate.

3 The exhibits may be returned except 3, 4, A, B, C and D.

      R Hussey
      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.

CITATION : Groenewegen v Leichhardt Council [2007] NSWLEC 227

At a glance

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Judgment (64 paragraphs)

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Cases Cited (2)