Jones v Leichhardt Municipal Council

11442 & 11270 of 2003 Richard Jones v Leichhardt Municipal Council

JUDGMENT 1 This matter involves two separate but related appeals in relation to the property at No. 48 Evans Street, Rozelle (the subject site). Appeal No. 11442 of 2003, relates to the demolition of the existing dwelling. Appeal No. 11270 of 2003 relates to the erection of an attached dwelling comprising two dwellings with ground floor living areas and three bedrooms on the first floor. The proposal also includes the strata subdivision of the dwellings. 2 The subject site is zoned residential under Leichhardt Local Environmental Plan 2000 (LEP 2000). The proposed development is permissible with consent within this zone. The dwelling on the subject site is not an identified heritage item but is located within a conservation area and in the vicinity of a number of heritage items. LEP 2000 provides controls for floor space ration at cl. 9. It was common ground that the proposal has a floor space ratio of 0.95:1 compared to the LEP 2000 requirement of 0.7:1. Development Control Plan 2000 (the DCP) provides more detailed requirements for residential development. The relevant requirements relate to building envelope, side setbacks, solar access and streetscape. 3 The council filed an amended statement of issues containing 20 issues although not all were pressed. The remaining issues can be conveniently grouped into the following main areas. 1. the impact on the conservation area, 2. the internal amenity of the proposed dwellings, 3. the impact on the streetscape, 4. whether the SEPP 1 objection to the exceedance of the floor space ratio development standard is well founded, 5. whether there are unacceptable impacts on the nearby and adjoining neighbours, and 6. should demolition of the existing dwelling be allowed if the proposed dwellings are unacceptable. 4 On the issue of heritage impact, cl. 15 of LEP 2000 provides objectives in relation to heritage conservation. Relevantly the objective in cl. 15(b) states, in part, "to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt." 5 Cl. 16(8), in relation to conservation areas, states that consent must not be granted for the demolition or erection of buildings unless an assessment has been made of the extent the development would have on the conservation area. Part A of the DCP provides details on the character of Rozelle. 6 Mr David Logan, an architect and heritage consultant, provided evidence for the council and Mr Jim Rannard, a town planner, provided evidence for the applicant. There was general agreement that the erection of terrace styled housing was appropriate for the subject site. The experts disagreed on whether the proposed first floor balcony that cantilevered over the footpath area was appropriate in the conservation area. 7 Mr Logan maintained that balconies that project over the footpath are only appropriate where there is documentary evidence that show that these balconies formerly existed. The accurate reconstruction of these elements generally enhances the historic character of the streetscape and enables the historic building to be readily discerned. New buildings that provide these elements compete with these historic elements thereby reducing their visual prominence and making it more difficult for the public to interpret what is historic and what is not. 8 Mr Rannard states that the proposal is consistent with the character of the conservation area. In his opinion the balconies will not in any way diminish the heritage value of the nearby heritage items or adversely affect the character of the conservation area. 9 On this issue I agree with Mr Logan. While his argument may be subtle in the overall heritage consideration, it is nonetheless an important matter from a streetscape perspective. The character of Evans Street is interesting because of the range of uses and building forms. I have little doubt that a building of similar form could comfortably fit within the streetscape without diminishing the significance of the existing older buildings in the vicinity. 10 I find that the proposal is inconsistent with the objective in cl. 15(b) and pursuant to cl. 16(8), the impact on the conservation area is unacceptable. The appeal must fail for these reasons however I will briefly deal with the other issues. 11 The internal amenity issue related to the lack of solar access to the dwellings and to a lesser extent the lack of cross-ventilation. Ms Deborah Laidlaw, a town planner, provided evidence on this issue for the council and Mr Rannard provided evidence for the applicant. Ms Laidlaw acknowledges that the subject site is constrained by the height of the commercial building to the north and its orientation but these factors are not a sufficient reason for an unacceptable level of internal amenity. She states that the design is flawed as it places utility rooms along the north-western elevation, this being the only elevation with any reasonable access to sunlight. Ms Laidlaw rejects the use of skylights and glass floor panels to transmit daylight to the ground floor as not genuinely addressing the issue of solar access. 12 Mr Rannard maintains that the design is suitable as it provides protection for residents from the activities on Evans Street. The use of skylights and glass flooring is in Mr Rannard's opinion, an acceptable solution based on the constraints imposed on the site. 13 On this issue I agree with Ms Laidlaw. It was common ground that the internal living rooms to both dwellings receive no solar access during winter other than that obtained through the skylights and glass flooring. This is contrary to the requirements of Part 3.1 of the DCP that requires 3 hours of solar access between 9 am and 3 pm at the winter solstice for living areas of new dwellings. Notwithstanding the constraints, it is unacceptable that the living areas of both dwellings receive no solar access in mid winter. The use of the skylights and glass flooring could be used to supplement limited solar access but I am not convinced that it should be the sole source of solar access. While I understand the basis of the design and the location of the utility rooms, I do not accept that this should be given prominence over solar access. I note that the issue of cross-ventilation is likely to disappear with a design that provides solar access to living rooms from the street elevation. 14 The overall issue of streetscape included the concerns of Mr Logan on the cantilevered balcony. The interface with the public footpath was an issue of concern raised by Ms Laidlaw. She states that the toilets and laundries do not make a positive contribution to the street. If the basis for the design is to provide privacy for future occupants then this can be achieved through setting the building back from the street. Based on the non-compliance with the floor space ratio requirements this could be achieved through reduction in the floor area of the dwellings. To support her concerns, she notes Part B 1.5 of the DCP requires elevations that front a public space are not to be dominated by windows or doors to non-habitable rooms. 15 The design of this area was found to be unacceptable in terms of solar access and I also accept Ms Laidlaw's evidence that it is unacceptable in terms of streetscape. The requirement in Pt B 1.5 of the DCP is a means of protecting the streetscape and is relevant in this case, particularly in a conservation area. 16 The SEPP 1 objection for the variation to the floor space ratio development standard was not prepared by Mr Rannard although he adopted its contents. The means of dealing with an SEPP 1 objection is set out in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC. It poses a number of questions that must be answered before it is possible to determine whether the SEPP 1 objection is well founded. Fundamental to this consideration is the objective or the underlying objective of the development standard in question. Ms Laidlaw properly considers the contents of cl. 17(a) as it provide some guide to the underlying objective of the development standard. It is, however not addressed in the SEPP 1 objection, the statement of Mr Rannard or in my view, Mr Rannard's oral evidence. In the absence of this detail I can only conclude that the SEPP 1 objection is deficient and consequently not well founded. 17 The objections from local residents centred on the potential loss of privacy and noise impacts from the rear upper balcony. These have access from the second and third bedrooms. With the benefit of the site view I accept that the separation distances, together with the use of the adjoining rooms as bedrooms and the existing and proposed landscaping will not create any unacceptable loss of privacy to adjoining properties. 18 Having found that the proposed dwellings are unacceptable, the Court must determine whether the separate appeal relating to the demolition of the existing dwelling should be allowed. While accepting that the condition of the dwelling supports its demolition, Mr Logan states that it would be inappropriate to allow the demolition without an approval for its replacement. In his opinion, vacant sites generally have a negative impact on the streetscape and would be inconsistent with cl. 15(a), 15(b) and 15(c) of LEP 2000. 19 I agree with his evidence and consequently this appeal should also be dismissed. 20 The Orders of the Court are:

2. Development application D/2003/544 for the erection of 2 x 2 level townhouses and strata subdivision at No. 48 Evans Street, Rozelle, is refused.

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