30 A maximum floor space ratio of 0.7:1 applies to the site under clause 19(2) of LEP 2000. The proposed development has a floor space ratio of 1.23:1 for Lot A and 1.11:1 for Lot B and therefore exceeds the standard in respect of both lots by a margin of 75.7% and 58.6% respectively.
31 The applicant has submitted an objection to compliance with clause 19(2) of the LEP under State Environmental Planning Policy No 1 (SEPP1) but council does not assess that the objection is well founded in the circumstances of this case.
32 A minimum landscaped area of 40% of site area is required under clause 19(3) of LEP 2000, of which 25% must be soft landscaped area (Clause 19(3)(b)). The proposal provides a landscaped area ratio of 43% for Lot A and a landscaped area of 43.9% for Lot B and complies with this standard. However, council is concerned that the development does not propose the planting of any trees at the street alignment or near the waterfront.
33 Clause 33 Foreshore Building Line: The site is subject to a foreshore building line. A building must not be erected and work must not be carried out on land between the foreshore building line and the mean high water mark (other than as specified in sub-clause (3) including pools, boatsheds and the like subject to the work not detracting from the scenic qualities of the locality). The proposed development complies with this control.
Heritage Conservation
34 The site is located within a Heritage Conservation Area, and it is in the vicinity of heritage items at Nos. 18 and 8 White Street under Leichhardt Local Environmental Plan 2000. The site is therefore subject to the provisions of Clause 16(7) - 'Development in the vicinity of Heritage Items' and 16(8) - 'Development in Conservation Areas' of the Leichhardt Local Environmental Plan 2000.
35 Clause 15 of LEP 2000 provides objectives in relation to heritage conservation, as follows:
The objectives of the Plan in relation to heritage conservation are as follows: a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation, b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines, c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items, d) to allow compatible and viable adaptation and re-use of the fabric of heritage significance, e) to ensure the protection of relics and places of Aboriginal cultural significance in liaison with the Aboriginal community.' 36 Clause 16(7) of LEP 2000 makes the following provision for development in the vicinity of a heritage item: 'Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.' 37 Clause 16(8) of LEP 2000 makes the following provision for development in Conservation Areas: 'Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to: a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or aboriginal site that would be affected, and the contribution it makes to the conservation area, and b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development. 38 The following State Environmental and Regional Planning Policies are relevant to the proposal: * State Environmental Planning Policy No. l - Development Standards. * State Environmental Planning Policy (BASIX). * State Environmental Planning Policy No.55 - Remediation of Land; * Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. Development Control Plan 39 The site is subject to the provisions of Leichhardt development Control Plan 2000 under which it is located within the Balmain Suburb and Birchgrove Distinctive Neighbourhood. 40 The Desired Future Character guidelines for the Birchgrove Distinctive Neighbourhood provide, as relevant: * Development should follow the topography of the area and maintain the single storey scale on the mid slopes and mixed 1 and 2-storey scale at the top and bottom slopes. * Conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi detached houses with a prevalence of hipped, pitched and gabled roof forms. Preserve the established setbacks for each street. * Preserve and where practicable, enhance public and private views over Snails Bay and Parramatta River. Buildings on the waterfront should follow the slope and help preserve view lines by stepping down with the contours. * Promote a balance of landscape to built form in the view of the neighbourhood when viewed from the water. * Conserve the single and double storey, freestanding form, style and materials characteristic to each street. * Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings. * A maximum building wall height of 6m applies to the neighbourhood. * New / expanded driveways crossings shall be discouraged. Driveway crossings will only be supported where they are servicing single width garages and they do not involve excavation of sandstone features. * New development shall maintain the use of hipped, pitched and gabled roof forms and designs shall be complementary to the existing unadorned built form. Flat roofs may be appropriate the style of architecture is contemporary and view lines may be affected. * Building materials used shall be consistent with the existing character of the streetscape, including rendered and painted surfaces and roof materials such as corrugated iron as well as timber windows. * Development visible from the water is to be designed to preserve the conservation values of the area. When viewed from the water a balance between built form and landscape is to be achieved/maintained through side setbacks and landscaping. Where development is visible from the water details of that view are to be submitted with the development application. * Conserve the single storey and double storey, freestanding form, style and materials characteristic to each street. * Where a consistent pattern of architectural style and form exists, preserve this consistency on each street. * Maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials. * Fences should be low open pickets and with metal timber or stone posts. * Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings. 41 The following controls apply under Part B1.2 of DCP 2000: * Rear Building Location Zone: Development is required to be located within a line drawn between the rear setbacks of adjoining dwellings. First & second floors should not occupy the whole of the ground floor Building Location Zone. 42 The proposal breaches this line by up to 5 metres at ground, first and second floors. * Side setback: Development is required to sit within a plane measured from a height of 2.4 metres of ground level along the side boundaries, then projected at 45 degrees over the site. 43 The proposal breaches this requirement. 44 The following controls apply under Part B3.1 of DCP 2000: * Solar Access: Development is required to provide solar access for a minimum of 3 hours solar access between 9am and 3pm at the winter solstice for all new dwellings. 45 The council contends that the original proposal fails to meet this control in respect of the northwest facing living room of Dwelling B. The adjoining lots are vacant and hence are not subject to assessment, however the proposal does create significant overshadowing on these lots by reason of its height, flat roof form, non-compliant side setbacks and extension of built form beyond the building location zone. Other provisions of DCP 2000 46 The following provisions of DCP 2000 are relevant: * Part A7.0: Heritage Conservation; * Part 8.0: Parking Standards and Controls; * Part A l 0.6.6 - Birchgrove Distinctive Neighbourhood. * Part B1.1: Demolition, site layout, subdivision and design; * 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; * Part 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 B2.4: Natural ventilation; * 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. * B4.4 Foreshore development. 47 The following development control plans also apply to the proposed development: * Sydney Harbour Foreshores and Waterways Area Development Control Plan. * Development Control Plan No. 36 (Notifications). * Development Control Plan No. 38 (Waste - Reuse, Reduce Recycle). * Development Control Plan No.42 (Contaminated Land Management).
Contention 6
48 The council raises 9 contentions in respect of this application. However, contention 6 is determinative of the appeal in my assessment. It deals with the appropriateness of the proposed subdivision and states:
"The proposed subdivision is contrary to Clause 30 of LEP 2000 and Part B1.1 DCP 2000 for the following reasons.
Particulars
a The proposed subdivision provides for two long, narrow lots each with a width of approximately 4.7m and a lot of that width is not consistent with the existing development.
b The prevailing pattern of subdivision includes lots generally of around twice this width or more. Of the adjoining lots, 1 A Tilba Avenue to the north has a width of approximately 15 metres while 7 Tilba Avenue occupies a lot of approximately 20 metres width.
c The proposed lots do not provide an appropriate setting for development in terms of site areas, dimensions and amenity. Due to the narrow width of the lots and their modest area relative to common expectations of purchasers of valuable waterfront properties as to floor area to accommodate their needs and amenity, the proposed subdivision will promote development that is of excessive scale and which will not protect the urban form, scale and density of the locality.
d The development application has not shown how two dwellings can be accommodated on the two lots, each with appropriate amenity:
* The dwelling on Lot B will have less than the 3 hours of sunlight required under Part B3.1 of DCP 2000, and this is this unacceptable outcome for a northwest facing block that is otherwise free of overshadowing by adjoining development.
* Both dwellings are reliant on skylights/lightwells for daylight access to main living areas, each of these features being potentially subject to daylight obstruction from developments that will occur on each of the two vacant lots to each side.
* The applicant's shadow diagrams appear to understate the extent of shadow impact on the private open space of the proposed dwellings, such that these are either non compliant or only just compliant (depending on the correct position of true north) with the solar access standard in Part B3.1. This is a poor outcome for open space with a north-west aspect, with no shadow impact from adjoining development, and arises due the narrow width of the proposed lots and the height of fencing proposed."
49 The town planning experts agree that the proposed lots comply with the minimum 200m2 subdivision area standard in clause 19(4) of the LEP. However, the experts have different opinions about whether the proposed subdivision into two lots satisfies the provisions of clause 30 of the LEP and Part B1.1 of the DCP.
50 Clause 30 states:
"Subdivision of Land
Before consenting to a subdivision of land, the consent authority must consider whether the subdivision will:
(a) provide an appropriate setting for development in terms of site areas,
(b) protect the urban form, scale and density of the locality."
Applicant's evidence about the subdivision
51 Mr Turrisi is of the opinion the proposed subdivision into two long narrow lots is consistent with the statement within the existing character statement for Birchgrove "…that many waterfront residential developments follow the slope of the land down to the water and the subdivision patterns are long and narrow blocks". In his expert assessment the proposed subdivision is not uncharacteristic of the existing waterfront development where lots are more varied in width and size. He invited the Court to appreciate his expert opinion at the view particularly from the water when he pointed out the irregular but often long and narrow lots adjoining the site and within the relevant area.
52 In his expert opinion clause 30 of the LEP "has greater weight in areas which are more traditional in grid pattern, where street blocks are rectangular and the built form uniform to reflect a specific subdivision pattern."(P19 joint report). For example areas in Leichhardt and Annandale and along the ridgeline of the Balmain Peninsular. In his assessment, the urban development in Balmain peninsula reflects the topography of the area and reflects a road layout that is less structured.
53 Because of his opinion about the applicability of clause 30 to this locality he suggests that the Court should place greater emphasis on the built form issues of the proposal rather than the two dwellings on the subdivided land.
54 In his written evidence, Mr Turrisi states " I am of the view that provided the built form is deemed to be appropriate on the land, then whether the property subsequently contains two dwellings is on my submission irrelevant providing that the proposal complies with the minimum subdivision standard" (p19 joint report). Despite his support for the proposed built form Mr Turrisi agreed with the proposition that it was appropriate to confine the built form within the building location zones and foreshore building line. He agreed that the proposed development while complying with the foreshore building line does not sit within the building location zones under council's controls.
55 In asking the Court to give more weight to the built form rather than the proposed two dwellings in a consideration of the matters raised by clause 30, Mr Turrisi accepted that a subdivision of the site would allow for the independent development of each lot in the future. He accepted that two different owners might obtain consent to build different built forms on the lots or there could be a situation where one of the dwellings in this application if approved might not be erected on the site.
56 His evidence is that the issues of solar access to the dwellings have been addressed with a minor amendment and the proposal is compliant .The movement of the light well to allow direct light into the living area overcomes in his mind any issue with the internal amenity of the proposal.
57 The lack of side access from the street to the water is in Mr Turrisi expert opinion no issue because the water provides alter direct access to the site if necessary.
The Council's evidence about the subdivision
58 Ms Laidlaw describes the applicant's reliance on the DCP's reference to long and narrow lots as being characteristic of the area as "meaningless", because, in her assessment, the lots in the locality of this development are "…around twice the width of proposed lots A and B "(p20 joint report).
59 According to council's evidence, a site with a width of 4.7m "…is the minimum required for practical living accommodation in this type of environment ". Ms Laidlaw was of the opinion clause 30 in the LEP needs to be read with the DCP provision which states; "subject to the minimum lot size of 200m2, future lot subdivision should be consistent with the prevailing subdivision pattern and shape of the surrounding development." This proposal, she suggests, offends that key performance guideline because the lots as proposed do not "conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi detached houses or conserve the …freestanding form…characteristic to each street." In her assessment the controls in the DCP in Part A10.6.6 and Part B1.1 are not achieved by this subdivision. As she states in the joint report Clause A10.6.6 requires "development visible from the water to be designed to preserve the conservation values of the area …balance between built form and landscape is to be achieved /maintained through side setbacks and landscaping…." The narrow width of the lots in this application she says dictates a terrace style development, built side to side boundary, and in her opinion that is inconsistent with the Desired Future Character. She referred to the provisions in Part B1.1 Design Element 1 -Demolition, Site Layout, Subdivision and Design which are based on the rationale that infill development needs to meet the desired future character of the area and is to be of "high quality design" and "…compatible with the apparent subdivision pattern". In her oral evidence Ms Laidlaw was clear that in her assessment this is not "high quality design" or "development compatible with the apparent subdivision pattern". In her opinion this vacant site has the development potential to comply with the objectives of the suite of controls in the LEP and the DCP. She expressed the view that appropriate development could be a single dwelling or dual occupancy on this site and did concede that the setback control could be varied to accommodate the constraints of the site but not to the extent of allowing development built to the boundary.
60 Ms Laidlaw told the Court that provided view corridors to the water were maintained by some side boundary setback; a less bulky development within the building location zones may achieve the objectives of the controls and result in a development that is consistent with the desired future character of the area.
61 However in her assessment the criteria in clause 30 are not achieved by this proposal because the development does not provide an appropriate setting for development in terms of site area or dimensions - or amenity. Nor does the subdivision, in her opinion, protect the urban form, scale and density of the locality. She says that the subdivision would limit the design to terrace development built to the boundary and dictate a greater ratio of building bulk to site area relative to adjoining development.
62 Ms Laidlaw is also critical of the internal amenity of the proposal which she says is prejudiced by the narrow lot width. While accepting the amendment to improve the solar access, she submits that the fact that a north west facing dwelling (with vacant lots to each side) having difficulty obtaining appropriate solar access is indicative of the "self imposed" constraint on amenity, which is caused by the proposed subdivision.
63 The reliance on skylights for daylight and to main living rooms because of the possible impacts of adjoining development on internal amenity to this site is also indicative of the unsuitability of the subdivision as proposed.
64 The council is concerned about the precedent effect in approving this application particularly because of the evidence that the development of this site as proposed would impact the opportunity for development of the adjoining vacant sites and the public view from the waterway. Council contends that the development is contrary to the provisions of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (REP) and the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (Sydney Harbour DCP) for the reasons detailed in contention 7 as particularised in the letter from council's solicitor to the applicant dated 27 May 2010.
Findings
65 I accept the evidence of Ms Laidlaw that the proposed subdivision while numerically compliant in area does not provide an appropriate setting for development in terms of site area, or protect the urban form, scale and density of the locality as is required by clause 30 of the LEP. Nor does this subdivision meet the Desired Future Character guidelines for the Birchgrove Distinctive Neighbourhood to "conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern."
66 I do not accept that clause 30 of the LEP should be given less weight in a consideration of this application because of the site's location, as Mr Turrisi suggests. Nor do I think that it is appropriate, as was again suggested by Mr Turrisi, to place greater emphasis on the acceptability of the built form in a consideration of the development provided it complies with the site area requirement. In adopting that approach, the applicant ignores the fact that a subdivision of this land creates two independent development sites. A focus on the built form proposed in this application becomes academic if it is never built, however, the subdivision of land once created remains. Based on the evidence in this case, I accept that clause 30 of the LEP which applies to the site is a relevant consideration under section 79C(1)(a)(iii) and requires that I not only consider whether the proposed lots "provide an appropriate setting for development in terms of site areas " but also whether they "protect the urban from, scale and density of the locality."
67 To effectively ignore or give little weight to a consideration of the matters in clause 30(a) and (b) of the LEP would in my opinion compromise the ability to assess whether the objective in relation to housing in clause 17 (c) " to provide for a minimum residential allotment size in order to protect the area's diverse subdivision pattern and to ensure the orderly and economic use and development of residential land" is achieved with this development.
68 Even if I were to accept Mr Turrisi's evidence that the built form comprising two dwellings (subject to amendments as discussed to reduce the bulk and scale and increase landscaping) could result in an acceptable built form for the site after a merit assessment under section 79C of the Act, it does not follow that the proposed subdivision is appropriate (or even necessary) from an urban design perspective.
69 Based on the evidence, I accept Ms Laidlaw's assessment that the subdivision does not protect the urban form, scale and density of the locality because it creates two long narrow lots which are not consistent with the prevailing subdivision pattern of the locality. I accept that this is a relevant consideration under clause 30 of the LEP in my assessment of the application.
70 Nor does the development achieve an appropriate setting for development in terms of site area because the long narrow lots encourage development that, according to Ms Laidlaw, compromises the internal amenity of the development and the future development potential of adjoining lots. I do not accept Mr Turrisi's evidence that clause 30 has greater weight in areas where there are more traditional grid patterns of subdivision. The subdivision of this prominent waterfront site must be assessed having regard to the considerations raised by clause 30 of the LEP. The clause invites a consideration of the subdivision of the site in its context whether that is traditional gird pattern or waterfront site. Whatever, the prevailing pattern the clause requires a consideration of that prevailing pattern with a view to " protect[ing] the urban from, scale and density of the locality".
71 An approval of the subdivision must be assessed having regard to the independent development potential of each lot that would be created. I accept that the development potential of an allotment with a width of 4.7m and area of 289m2 (even in Balmain) is based on the evidence, constrained. Based on the evidence a single dwelling or integrated design on the existing site provides a better opportunity for orderly and economic use and development of this residential land within a conservation area. It was apparent at the view that the surrounding lots are twice the width and area of the proposed lots. I accept the evidence of the council, confirmed by the view that approval of the proposed subdivision would result in two lots, which would be at odds with the prevailing subdivision pattern of the area. I agree with Ms Laidlaw that Clause 30 of the LEP should be read with Part B1.1 of the DCP, which provides "subject to the minimum lot sizes of 200m2, future lot subdivision should be consistent with the prevailing subdivision pattern and shape of the surrounding development". I accept the evidence of the council, confirmed at the view, that the prevailing subdivision pattern along the western side of Tilba Avenue and Phoebe Street is one with allotments of almost double the width of the proposed allotments; and the proposal fails to accord with these controls.
72 Mr Turrisi conceded in his oral evidence if the land was subdivided as proposed the opportunity to redevelop each new lot independently by separate owners with different designers was a fact. His evidence is that an integrated development over two separate lots as proposed is appropriate development for the site however; based on the evidence subdivision of the site is not necessary to achieve that outcome.
73 The opportunity for independent development of each lot in the future (if this subdivision was approved) is sufficient reason in my opinion to refuse this application. The creation of two 4.7m wide long narrow lots on this prominent waterfront site would not achieve the land use objectives of the LEP in clause 7(3) or the objective for Housing in Part 4 clause 17 (c) "to provide a minimum residential allotment size in order to protect the area's diverse subdivision pattern and to ensure the orderly and economic use and development of residential" or provide for urban design which meets the Desired Future Character in Part A 10.6.3:"promote the consistent rhythm within the streetscape created by regular lots" The fact is that this lot is in the middle lot of three uniform allotments in a foreshore locality where the prevailing subdivision is lots double the width of the proposal The approval of this application for subdivision would be inconsistent with that prevailing rhythm within the streetscape and thereby, based on the evidence would be contrary to the Desired Future Character in Part A 10.6.3 of the DCP It would result in a density that is not consistent with surrounding development.
74 Council has raised the issue of precedent. The Court of appeal decision in Segal & Anor v Waverley Council [2004] NSWLEC 363 confirmed each merit appeal must be decided on its particular facts and this case is clearly distinguishable on its facts. However, because this site is on the foreshore and prominent I understand the submission of the council that the proposed subdivision of this vacant and unconstrained site has the opportunity to set an undesirable precedent for the adjoining vacant lots. Based on the reasoning of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 if faced with an application for a proposed development which may not objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. However, in this appeal the application is objectionable in itself and I do not need to rely on the precedent argument once described by Stein J as "…an argument of last resort" in Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council (NSWLEC, 13 December 1991, unreported) Stein J. To be clear, the precedent issue is not determinative of this appeal.
75 Of particular relevance in the present case are the following matters referred to in s 79C(1):
"(a) the provisions of:
(i) any environmental planning instrument, and
…
(iii) any development control plan …
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development...
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.