James Bale v Inner West Council

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made and the public interest.
2. The key statutory controls relevant to the application are as follows: 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP). The BASIX certificate provided by the applicant does not accord with the current plans before the Court. 2. Marrickville Local Environmental Plan 2011 (LEP 2011) 1. Clause 1.2: Aims of the plan 2. Clause 2.3: Zone Objectives and Land use table 3. Clause 4.3: Height of Buildings 4. Clause 4.4: Floor Space Ratio Pursuant to cl. 4.4 (2A) the subject site has an applicable maximum FSR of 0.8:1. 1. Clause 4.5: Calculation of floor space ratio and site area 2. Clause 5.9: Preservation of Trees or Vegetation 3. Clause 5.10: Heritage Conservation 4. Clause 6.1: Acid Sulphate Soils 5. Clause 6.2: Earthworks; and 6. Clause 6.5: Development in areas subject to Aircraft Noise.
3. The subject site is zoned R2 Low Density residential under LEP 2011 and the proposed development is permissible with consent.
4. As the site contains a heritage item, cl. 5.10 Heritage conservation applies to the development. The objectives of cl 5.10 of LEP 2013, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the Marrickville and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).
5. The Marrickville Development Control Plan 2011 (DCP 2011) applies. The sections of DCP 2011 to the assessment of the current application are: 1. Part 2.1 (Urban Design); 2. Part 2.3 (Site and Context Analysis); 3. Relevantly this section states, in part: Designs for new buildings, or additions which will be visible from the street, should incorporate those features to ensure consistency with the streetscape. It is important to understand the design principles, rather than simply copy period building designs when building a new dwelling or building, or adding to an existing dwelling or building. 1. Part 2.6 (Visual and Acoustic Privacy) 2. Relevantly this section states, in part: Complete protection of privacy in a densely built up environment such as the Marrickville Local Government Area is not always possible. Standards of privacy need to be balanced against the need for urban consolidation and the need to maintain a reasonable level of privacy to adjoining premises. The objectives of these provisions are as follows: O1 To ensure new development and alterations and additions to existing buildings provide adequate visual and acoustic privacy for the residents and users of surrounding buildings. O2 To design and orientate new residential development and alterations and additions to existing residential buildings in such a way to ensure adequate acoustic and visual privacy for occupants. … 1. Part 2.7 (Solar Access and Overshadowing); The objectives of these provisions are as follows: … O3 To protect solar access enjoyed by neighbours. … 1. Part 2.9 (Community Safety); 2. Part 2.10 (Parking); 3. Part 2.16 (Energy and Water Efficiency); 4. Part 2.18 (Landscaping and Open Spaces); 5. Part 2.20 (Tree Management); 6. Part 2.21 (Recycling and Waste Management); 7. Part 2.23 (Acid Sulphate Soils); 8. Part 4.1 (Low Density Residential Development); Clause 4.1.6: Built form and character 4.1.6.1 Floor space ratio and height Objectives: O10 To ensure development is of a scale and form that enhances the character and quality of streetscapes. O11 To ensure alterations and additions to residential period dwellings do not detract from the individual character and appearance of the dwelling being added to and the wider streetscape character. Controls: … C8 Notwithstanding compliance with the numerical standards, applicants must demonstrate that the bulk and relative mass of development is acceptable for the street and adjoining dwellings in terms of: i. Overshadowing and privacy; ii. Streetscape (bulk and scale); iii. Building setbacks; iv. Parking and landscape requirements; v. Visual impact and impact on existing views (Council encourages view sharing between surrounding residences); vi. Any significant trees on site; and vii. Lot size, shape and topography. … 1. Part 8 (Heritage); and 2. Part 9 (Strategic Context)
6. The statement of significance for the Jarvie Avenue HCA is as follows: The Jarvie Avenue Heritage Conservation Area is of historical significance as a 1930's subdivision by John Jarvie and is one of the last substantial residential subdivisions in the Marrickville LGA. The HCA is of aesthetic significance for its very good examples of modest Inter-War bungalows and semi-detached cottages, the strong patterns created by the consistently expressed built forms and survival of much original detailing. The HCA retains narrow grass verges with street tree plantings and narrow, centrally located concrete footpaths; low solid fencing constructed of brick to match the house with decorative brickwork detailing that adds texture to the streetscape, building style, scale and forms; a prominent roofscape composed of forms characteristic of the Inter-War period; minimal setbacks from all boundaries; one side sufficient to allow vehicular access; wide building frontage; configuration of facades; high quality face brickwork; and minimal garden spaces.
7. The overall objectives of Part 8: Heritage of DCP 2011 are: O1 To conserve heritage items and maintain appropriate setting and views. O2 To retain evidence of historic themes of development evident in the Marrickville LGA, through the proper care and maintenance of individual heritage items and HCAs. O3 To provide guidelines for alterations and additions which complement and do not detract from the heritage significance of individually listed heritage items and HCAs. O4 To protect those items and areas of value to the local community. O5 To encourage new development which complements existing heritage items and heritage conservation areas in a modern context.
8. At 8.2.25.2 DCP 2011 provides the following summary of core heritage values and elements for the Jarvie Avenue HCA: i. The HCA's enclosed streetscape contains hidden entry points, narrow street width and a close street wall; ii The residential character is demonstrated through the consistency of the bungalow typology. iii The HCA's substantially intact group demonstrates key elements (scale, form and detailing) of the Inter-War period Californian and Georgian Revival bungalow styles. iv A range of stylistic variation exists within a highly consistent overall built form; v Individual dwellings are of high aesthetic value.
9. At 8.2.25.5 DCP 2011 details Elements that contribute to the consistency of the streetscape (visible from the public domain). The elements relevant to the current proceedings are as follows: i Residential character demonstrated through the consistency of the bungalow typology; ii Substantially intact group demonstrating key elements (scale, form and detailing) of the Inter-War Californian bungalow and Georgian Revival Style period bungalow style; iii Range of stylistic variations within a highly consistent overall built form; … vii Roof forms appropriate to the typology and period of construction: a. Good quality roofscape views; b. Roof forms of groups or runs of buildings demonstrating consistent pitch and rhythm; c. Intact roof forms and volumes; …. viii Intact or substantially intact built elements; a. Consistency of form and detailing to intact and substantially intact original dwellings and streetscapes; and b. Any additions visible from the public domain [are] of a minor scale [and] respect original built form and are unobtrusive in the context of the streetscape. …
10. At 8.3.1 of DCP 2011 the HCA is defines as a "Type A residential HCA". The relevant control is: C1: New development must be consistent with the recorded elements that contribute to the consistency of the streetscape in HCAs (refer to the relevant HCA sheet in Section 8.2).
11. At 8.3.1 of DCP 2011 streetscape is defined as: � Street attributes being the combination of elements within a street which create the urban form of that street. It includes such elements as building forms and styles, landscaping, street furniture and pavements; and � Properties adjoining and adjacent on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances it is appropriate to consider up to ten allotments on either side of the subject site.
12. At 8.3.2.5 Building form states: General characteristics of the significant period of development i. Building forms are characteristic of their individual architectural style. ii. Most buildings are modest and based on standardised floor plans. iii. The scale and level of detailing decreases towards the rear of properties. Windows to side elevations also reduce in scale (but retain proportions) behind the main rooms (which can be in the middle of the main house) and towards the rear of properties. … Controls: C21 Extensions and alterations visible from the street must be consistent with the overall massing and form of the property (refer to the specific style sheets) and must not dominate the existing building form. C22 Existing original roof forms (and, where possible, materials) must be retained to the front elevation and for the length of the main roof to the side elevations …
13. 8.3.2.7 Building facades Residential Type A characteristics i. The consistency of facade scales, proportion, materials and detailing contributes strongly to the cohesiveness of the streetscape and its aesthetic value in the residential detached and semi-detached HCAs. Control: C36 The original scale, proportion, materials and detailing of street facades must be retained.
14. Within DCP 2011 at Section 8.5 the Council provides HCA Style Sheets. The relevant section for these proceedings is 8.5.3 Inter- War. At 8.5.3.1 the characteristics of that style of housing are summarised. Of relevance to the current proceedings are the following extracts: … Most examples of Inter-War period style housing in the Marrickville LGA are modest. … Inter-War period houses (as opposed to residential flat buildings) in Marrickville LGA's HCAs are universally single storey. First floor additions are therefore non-characteristic elements and must not be applied to such buildings in the HCAs.
15. The objectives of 8.5.3 Inter- War are: O1 To retain and, if possible, enhance the contribution of the property to the streetscape. O2 To ensure any change in the HCA is sympathetic to the Inter-War period values of the property and its ability to contribute to the identified heritage values of the area. O3 To retain the curtilage and setting - including front setbacks - free of car parking. O4 To keep original roof forms and materials and the scale of the building as presenting to the street. O5 To retain or reinstate front facade proportions, materials and open verandas or porches. O6 To protect, maintain and recover original details of the house, front yard and fence.
16. Part 9 of DCP 2011 contains, at cl. 9.12.2, the Desired Future Character for precinct 12 (which contains the subject site). That character is described as follows: 1. To protect and preserve the identified period buildings within the precinct and encourage their sympathetic alteration or restoration. 2. To protect the identified Heritage Items within the precinct. 3. To maintain distinctly single storey streetscapes that exists within the precinct. 4. To protect groups or runs of buildings which retain their original form including roof forms, original detailing and finishes 5. To protect significant streetscape s and/or public domain elements within the precinct including landscaping, fencing, open space, sandstone kerbing and guttering, views and vistas and prevailing subdivision patterns. 6. To preserve the predominantly low density residential character of the precinct. … 9. To protect the identified values of the Porter's Brickworks Estate Heritage Conservation Area, the Jarvie Avenue Heritage Conservation Area, the Rathlin Estate Heritage Conservation Are a and the Dulwich Hill Commercial Precinct Heritage Conservation Area. …

Public Submissions

1. At the commencement of the hearing the Court heard evidence from adjoining residents. The oral evidence from residents, and the submissions received during the notification of the applications, support the matters raised by the Council, and emphasise the following matters: 1. The development will adversely affect the visual privacy of the neighbouring properties to the west, in particular their rear yards; 2. The proposed additions will overshadow adjoining properties; 3. The development is not in keeping with the streetscape, and will impact on the significance of the heritage conservation area; 4. The proposed first floor addition will be highly visible in the streetscape.

Expert Evidence

1. The Court was assisted by expert heritage evidence from Mr. Stephen Davies for the applicant, and Mr. Robert Moore for the Council.
2. A Joint expert report was prepared and filed. I have read and considered that report.

Consideration

1. Mr Moore's evidence is that, whilst the proposal has complied with the procedural requirements and controls within LEP 2011, the proposal does not respect and maintain the heritage significance of the Jarvie Avenue HCA, or the basis on which the area was listed.
2. He relies on the controls in the DCP at Part 8 (refer paragraphs 14-22) as an indication of the appropriate built form that is responsive to the typology, period and character of the dwellings of the HCA. He concludes that the departure of the proposal from these controls indicates the proposals unacceptable nature.
3. It is Mr Moore's view that the proposal involves a development which will distort the architectural characteristic of the existing dwelling with an atypical, unsympathetic addition; its presence will diminish the contributory values of the subject residence, as well as diminishing the values of the precinct overall (Exhibit 2). In oral evidence it was clear that in Mr Moore's view the choice of a modern architectural design and materiality that sits in contrast to the heritage items is detrimental to the significance of the Jarvie Avenue HCA.
4. Further Mr Moore's evidence is that the approval of the proposal will have a detrimental impact on the HCA itself, and will also act as a precedent and encourage similar proposals which will inevitably lead to the diminishment of the reasons for which the precinct is listed; its authenticity and integrity will have been lost (Exhibit 2).
5. The heritage experts do not agree to the extent of the visibility of the proposed extension. Mr Moore maintained in oral evidence that the proposed development will be clearly discernible in the streetscape, and will read as incompatible with the existing building form and scale. In particular it was Mr Moore's evidence that the works proposed at the upper storey will be visible in an oblique view from Jarvie Avenue and from properties adjoining, or in proximity to the site.
6. Mr Moore concludes that to maintain the heritage values of the HCA it is not just the "frontal appearance" of this house, and of others in the Area, which is important. Their significance is vested in the holistic design and design character, which are so remarkable within the Municipality as to have supported their listing. What makes houses important will not be conserved if only their "front" is given concern (Exhibit 2).
7. It is Mr Moore's conclusion that the detrimental impact of the proposed extension on the significance of the HCA warrants refusal of the application.
8. In contrast to the evidence of Mr Moore, Mr Davies concludes that the design has been resolved so that the addition is located behind the principal ridge line of the dwelling, and is setback from the principal northern gable. Although higher that the ridge line the proposed height and materials assist in providing a well resolved simple and contemporary addition that does not compete with the roof form of the existing dwelling (Exhibit 2).
9. In terms of the visibility of the proposed works Mr Davies' evidence is that: An analysis of the plans and perspective provide evidence that the first-floor addition will not be highly visible from the streetscape. The proposed addition will be visible but not in a detrimental manner. In the streetscape view the proposal will generally be invisible as one moves up and down the street except when viewing from specific angles and then it will be hardly visible. The dark materials and the proposed generous setbacks ensure that the proposed addition will be a subtle, not intrusive addition. .. the northern gambrel gable is such that it protects the view line for the north easterly direction towards the dwelling. The addition from the south is obscured by the intimate setting and the location of the proposed addition is such that it does not impact detrimentally on that intimacy as the dwellings, even though generally single storey, are different in typology and also in the height of their roof ridges. The subject proposal is higher than the subject ridge, but no higher than the ridge of the adjoining single storey dwelling to the south. (Exhibit 2)
10. Mr Davies concludes that the development is compatible with the context and does not have a detrimental impact on the HCA. His reasoning can be summarised as follows: 1. The extension is of a modest height and floor plate; 2. the extension is sited behind the main gable of the ridge, and behind the northern gambrel gable. It is his evidence that this siting allows the primary form of the existing building to be read independently of the addition; 3. the proposed extension is setback considerable from the front street alignment, reducing its prominence; 4. the materials and colours adopted by the architect are recessive; 5. the form of the original dwelling may still be appreciated in the streetscape and the front elevation is unchanged.
11. Mr Conomos submits that by given the current FSR and height controls were made after the creation of the HCA, LEP 2011 acknowledges there will be consequential change within Jarvie Avenue, and that the Court should give weight to the high level of compliance of the proposal with the prescribed controls.
12. It is Mr Turner's submission that, on the basis of the evidence of Mr Moore, the Council maintains its objection to the proposed construction of a two-storey contemporary addition on the subject site. Mr Turner submits that the Court, in undertaking its assessment under cl. 5.10 of LEP 2011 will conclude that the effect of the proposed development on the significance of the HCA warrants refusal of the application.

Findings

1. I note that both the experts accept that the impact of overshadowing that arises from the proposal does not warrant refusal of the application.
2. I note that in oral evidence the experts agreed an additional condition to ameliorate any potential privacy impacts to adjoining properties that may arise from the first floor addition. That condition is as follows: That the louvres over windows that could allow visibility to neighbours should be fixed blades to a height of 1800mm above the floor with downward inflection, and adjustable above that. The bathroom window should be fitted with translucent film. (Exhibit 6)
3. Applying the principles established by the Court in Davies v Penrith City Council [2013] NSWLEC 1141 at [116] to [121] I am satisfied that the adjoining property currently experiences overshadowing at the relevant times and due to orientation, is vulnerable to an increase in such impacts. Given the development proposed is significantly under the maximum building envelope permissible under LEP 2011 and the vulnerability of the adjoining property, I am satisfied that the overshadowing generated by the proposal is acceptable.
4. I accept the evidence of the experts that it is appropriate to incorporate a condition on any consent for the development that requires the louvres to the western wall of the upper floor to be installed at a fixed angle to minimise overlooking. I have incorporated this in the orders at paragraph [49].
5. In assessing the merits of the proposal under s79C of the Act, the Court must consider the submissions of the public, the expert evidence and give appropriate weight to the permissibility of the proposed use (BGP Properties v Lake Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399). In evaluating the merits of the application I have also considered the relevant provisions of LEP 2011 and DCP 2011.
6. I accept the submission of Mr Conomos that by virtue of the prescribed FSR and height controls, made after the creation of the HCA, LEP 2011 acknowledges there will be consequential change within Jarvie Avenue, subject to the relevant merit assessment under s79C of the Act.
7. I accept the evidence of Mr Davies that the proposed first floor addition to the modest single storey cottage is acceptable and has been designed to maintain the readability of the original dwelling. I am satisfied that the form and scale of the proposed first floor addition is not unsympathetic to the original cottage or the contribution it makes to the heritage significance of the Jarvie Avenue HCA. In making this determination I have given consideration to the limited alternative alteration options available due to the small allotment size, the limited visibility of the works within the HCA, and the retention of the reading of the existing dwelling (including the intact primary roof forms) within the streetscape. These specific circumstances give rise to the acceptability, on balance, of the proposal.
8. Pursuant to cl 5.10(4) of LEP 2011 and considering the effect of the proposed development on the Jarvie Avenue HCA, I am satisfied that the effect on the conservation area is acceptable.
9. I am satisfied that the proposed development achieves the objectives of the heritage provisions of DCP 2011 at 8.1.1 and that the addition will be of a minor scale and unobtrusive in the context of the streetscape.
10. Ultimately, notwithstanding the concerns raised by the Council and objectors, I find that there are no substantive grounds that warrant the refusal of the application. I am satisfied that the proposal is an appropriate response to the desire to increase the accommodation on the site; the application is consistent with the aim of LEP 2011 to increase residential densities in appropriate locations, and that the architecture responds appropriately to the site and its context.

Directions

1. The Court Directs that: The applicant is to file an updated BASIX certificate for the development by 9am 28 September 2017 On filing of these documents, the Court will make the following orders: 1. The appeal is upheld; 2. Consent is granted to Development Application No. 201600408 for demolition of part of the premises and ground and first floor alterations and additions at 16 Jarvie Avenue, Petersham (Lot 6, DP 14518) subject to conditions in Annexure A, incorporating the following additional operational condition: Windows W6, W5, as shown on the architectural floor plan for Level 1, are to have fixed blade louvres to a height of 1800mm above the floor with downward inflection, and adjustable above that. The bathroom window (W4) is to be fitted with translucent film. Reason: To ensure appropriate visual privacy for adjoining properties. 1. The exhibits are returned with the exception of A, B, D and 1.

Orders

1. In accordance with the terms of the directions in my judgement of 22 September 2017 the applicant has provided me with the updated BASIX certificate in accordance with my directions [paragraph 49 ]. I am satisfied that the additional information accords with my directions. Accordingly I make orders in chambers as follows: 1. The appeal is upheld; 2. Consent is granted to Development Application No. 201600408 for demolition of part of the premises and ground and first floor alterations and additions at 16 Jarvie Avenue, Petersham (Lot 6, DP 14518) subject to conditions in Annexure A, incorporating the following additional operational condition: Windows W6, W5, as shown on the architectural floor plan for Level 1, are to have fixed blade louvres to a height of 1800mm above the floor with downward inflection, and adjustable above that. The bathroom window (W4) is to be fitted with translucent film. Reason: To ensure appropriate visual privacy for adjoining properties. 1. The exhibits are returned with the exception of A, B, D and 1. ……………. D M Dickson Commissioner of the Court Annexure A UPDATED (129 KB, pdf) Plans (1.12 MB, pdf)

Amendments 26 September 2017 - Updated conditions 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. Decision last updated: 26 September 2017