Lowe v Inner West Council

The subject site:

1. The site comprises a single allotment which is legally described as: Lot A DP441173. The site is approximately 147.1sqm in area and has frontages of 4.795m to Lamb Street and 4.785m to the rear land. It presently accommodates a single storey building comprising a dwelling house with a carport at the rear accessed via the lane.
2. The site is located within the Eastern Residential Sector in the 'Nanny Goat Hill' Lilyfield distinctive neighbourhood.
3. The subject site is not a heritage item, but is located within a conservation area. The site is not within the vicinity of any of Heritage Items.
4. The subject site is located within the Nanny Goat Hill Distinctive neighbourhood and the Brennan's Estate Heritage Conservation Area.
5. The immediate locality is defined in the Statement of Environmental Effects prepared in support of the application as follows: "The house is located between 2 two storey terrace houses. Originally the three dwellings formed a row of three terraces of which the two at either end have been altered substantially. Both the adjoining houses have been significantly altered from single-storey attached houses to a two storey and three storey terrace house." (Exhibit A)

Expert evidence:

1. The Court heard expert heritage evidence from Mr Robert Moore for the respondent and Ms Jennifer Hill for the applicant. The report arising from their joint conference was tendered as Exhibit H.
2. The Court heard expert town planning evidence from Mr Martin Amy for the respondent and Mr Kerry Nash for the applicant. Their joint expert report was tendered as Exhibit J.

Planning framework

1. Pursuant to cl. 1.8A of the Leichhardt Local Environmental Plan 2012 the relevant environmental planning is the Local Environmental Plan (LEP) which applied at the time of the lodgement of the application. Clause 1.8A states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
2. That LEP is Leichhardt Local Environmental Plan 2013 amendment 10 (LEP 2013) which was in place from 1 September 2017.
3. Relevantly the current version of the LEP (amendment 13) has revised some of the principal development standards that apply to the subject site. The applicable floor space ratio standard in force under the current LEP provides varied FSR standards for a range of lot sizes (at cl. 4.4A (2B)(a)). Applicable to the subject site is subsection (i) which states: (i) In the case of development on a lot with an area of less than 150sqm - 0.9:1 …
4. Pursuant to cl. 44 of LEP 2013 the floor space ratios (FSR) standard for the subject site is 0.5:1. The proposed new dwelling achieves a gross floor area of 126.923m2, and an FSR of 0.869:1 and therefore relies on a variation request under cl. 4.6 of LEP 2013.
5. Under LEP (amendment 13) the FSR standard for the subject site is 0.9:1.
6. Pursuant to LEP 2013 the site is zoned R1 General Residential and the proposal is permissible with consent. The objectives of the R1 zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. Of particular to the proceedings is the fifth objective which seeks housing compatible with the character of the area.
7. The site is located within a Heritage Conservation Are (HCA) and the proposal is therefore subject to the provisions of cl. 5.10 of LEP 2013. Sub-clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the HCA.
8. The site is located within a heritage conservation area. The objectives of cl. 5.10 of LEP 2013, 'Heritage Conservation' at sub-cl. (1), are to conserve the environmental heritage of Leichhardt 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). It is accepted by the parties that the development complies with the Landscape and site coverage controls at c. 4.3A(3)(a)(i) of LEP 2013.
9. The objectives of the FSR control are: (a) To ensure that residential accommodation: (i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and (ii) provides a suitable balance between landscaped areas and the built form, and (iii) minimises the impact of the bulk and scale of buildings, (b)To ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
10. LEP 2013 at cl. 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. However, consent must not be granted for a development that exceeds the development standard unless the court has considered a request that adequately addressed that matters required to be demonstrated by cl. 4.6(3), namely: (a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.
11. Whether the Court accepts the applicant's clause 4.6 variation request in relation to the variation of the maximum FSR of the development is a jurisdictional precondition to consent.
12. Given this provision must be satisfied to provide the consent authority power to approve the proposed development I will address the Cl. 4.6 variation request, prior to consideration of the merit contentions.
13. The site is subject to the prominence of Part C 2.2.4.2(a). The Eastern Residential Sub Area of Part C 2.2.4.2 - Nanny Goat Hill Distinctive neighbourhood of the Leichhardt Development Control Plan 2013 (DCP 2013).
14. The following sections of DCP 2013 are of particular relevance to the matters in contention:

• Part C: Place - Section 1 General Provisions, sub sections:
• C1.3: Alterations and Additions;
• C1.4: Heritage Conservation Areas and Heritage Items and
• C3.2 Site Layout and Building Design.

1. The detail of these provisions is di in the following as relevant to the evidence. The remaining provisions are identified in the Statement of Facts and Contentions at section 5.4 (Exhibit 1).

The draft LEP

1. At the time of lodgement of the Development Application, there was an exhibited amendment to the LEP which proposed to increase the FSR to 0.9:1. This amendment (Amendment No 13) came into force shortly after the determination. The proposed development complies with that FSR provision.
2. The applicant argues that although the provisions of cl. 1.8A preserve the LEP as existed at the time of the determination, that significant weight would be given to the current provision of the LEP. Mr Pickup argues this approach is consistent with the line of authorities of the Court following the decision in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 [5] - [7].
3. Section 4.15(1)(a)(ii) of the Act (previously s 79C(1)(a)(ii)) requires consideration of any proposed instrument that is or has been the subject of public consultation under the EPA Act and that has been notified to the consent authority as a relevant matter.
4. It was held by the Court in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 that the effect of cl. 1.8A is that it: "does no more than fictitiously set the 2012 LEP back to a point in time immediately before its commencement. At that moment the 2012 LEP is a "proposed instrument" and must be considered pursuant to s 79C(1)(a)(ii) of the EPAA"
5. The extent to which weight is given to a relevant factor is generally a matter for the decision maker, however is informed by previous decisions of the Court.
6. The decision of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council concludes that the weight to be given to a draft environmental planning instrument is proportionate to its certainty and imminence, although the level of consideration may differ depending on the purpose of the planning controls proposed.
7. It is appropriate to give the draft LEP significant weight as it meets the test of being imminent and certain (which it must be, given that it is currently in force).

Should the FSR standard be varied?

1. Mr Nash prepared the cl. 4.6 variation request that seeks to justify the variation to the FSR standard. The written request addresses those matters set out in cl. 4.6. The sufficiency of the cl. 4.6 or the variation to FSR was not raised by the Council as contentions in the proceedings.
2. The statutory requirements of cl. 4.6 are: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed that matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and … (b) the concurrence of the Secretary has been obtained.
3. The written request makes the following arguments in relation to the proposals satisfaction of the objective of the FSR control: The proposal satisfies the objectives of the floor space ratio standard through:- • the design and massing of the proposed first floor addition is compatible with the adjoining attached two storey dwellings; • the proposal, as amended, achieves a high level of compatibility with the desired future character of the area in terms of bulk, form, articulation and scale; • the provision of a landscaped area in excess of the landscaped area standard - 35% instead of 15% of site area; • compliance with the 60% site coverage standard (55%); • there being no adverse amenity impacts on adjoining properties arising from the proposed addition; and • the proposal making a positive contribution to the streetscape of Lamb Street. In the circumstances, the proposed development is consistent with the objectives of the floor space ratio development standard.
4. The objectives of the FSR standard are provided earlier in the judgment. Relevant to objective (a)(i) is consideration of the desired further character as detailed in the relevant planning documents. Objective (a)(i) states: "to ensure residential is compatible with the DFC of the area in relation to building bulk, form and scale".
5. At C.2.2.4.2 of the DCP the desired further character of the Nanny Goat Hill Distinctive Neighbour is outlined in a series of objectives and controls. Relevantly:

• C1 seeks to "Preserve the character of the area by keeping development consistent in architectural style, form and material".
• C2 seeks to "Preserve and enhance the predominant low scale "Cottage" character of the residential streets".
• C7 seeks to "Preserve and enhance the values of Heritage Items and HCA identified in LEP 2013".

1. The character of the existing area is defined as having a dominant built form of single storey detached cottages and a predominant single storey character. The description of the existing character notes that "two storey developments are evident, and are the result of land owners competing for views on elevated streets and upper slopes. The cumulative impact of this competition for views would be a total change in the built form character of the area." (Exhibit 2).
2. At C1.4 Heritage Conservation areas and heritage items, DCP 2013 details the following objectives for development relevant to the proceedings: Development: does not represent an unsympathetic alteration or addition to a building; encourages the protection, restoration, continued use and viability of buildings for their original purpose; encourages the removal of unsympathetic elements; is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter (Refer to: http//Australia.icomos.org/publications/charters/; … new buildings are sympathetic in scale, form, architectural detail, fenestration and sitting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter.
3. The listing for the Heritage Conservation Area identifies the following significant characteristics of Brennan's Estate: • Wide streets. Back lanes. • Buildings step up and down the slopes, following the landform. • Regular shaped allotments. • Regular modules of development - mostly one single-fronted house on one allotment. Some double-fronted houses cover two adjoining allotments. • Frequent groupings of two to five houses - as terraces, or pairs of semis or as single-fronted detached dwellings. • Uniformity of building style generally, of 1880s and early 1900s. • Small pockets of 1920s and 1930s free-standing cottages. • Consistent setbacks. • Lack of decoration generally - these are workers houses. • Occasional decorative detail suggests some pretension to style - painted tiles to front of house, timber bargeboard detail, tile paths. • Weatherboard is the dominant building material: in 1890 64 per cent of houses were of weatherboard. Note early timber church, O'Neill Street. • Brick is second most important building material used either plastered, where bricks were of lesser quality, or as face brick. • A number of fibro clad buildings. • Roofs largely of terracotta tile or iron, occasional slate. • Many sandstone kerbs and gutters; most uninterrupted by vehicular access. Street tree planting of melaleuca quinquinerva and callistomen from the 1970s.
4. The values or the significance of the Heritage Conservation Area is identified as: • One of a number of conservation areas that collectively illustrate the nature of Sydney's early suburbs and Leichhardt's suburban growth particularly between 1871 and 1891, with pockets of infill up to the end of the 1930s (ie prior to World War II). This area was intensely development 1889s-1890s, and this forms the major element of its identity. • It is significant for its surviving development from this period and the pockets of later infill development prior to World War II (ie up to 1939) • Through its pattern of subdivision and the scale, shape, sitting and materials of its buildings it provides a very intact example of a late nineteenth, early twentieth century suburb built for working men and tradesmen. • The density and regularity of its development across the land form, the views so created out of the area together with the small-scale detail of its modest architectural decoration result in a place of aesthetic value • It demonstrates through its remaining factories and the town houses that have replaced others, the mixed industrial/residential/retail nature of suburban development of that period, before the rise of cheap public transport, and before the urban reform movement sought to separate land uses into zones. • Through its small scale regular housing and the narrowed width of Joseph Street, it demonstrates a continuing theme in residential development throughout suburban Australia - the owner's determination to gain as much as possible from his land. • The concentration of free-standing houses in an area of narrow allotments demonstrates possibly both early fir regulations and the social status attached to a free-standing house. • Demonstrates the role of timber as a building material in nineteenth century. Sydney especially for the most modest end of the housing market, and the proximity of the timber yards in Whites Bay. • Demonstrates, through its groupings of three to five identical houses, the work of small-scale building contractors who constructed the suburb. • Illustrates through the existence of back lanes the reliance on the night soil cart before the reticulation of sewerage systems throughout suburban Sydney.

• have a detrimental impact of the loss of the integrity of the building;
• have an impact on the streetscape view of the Lamb Street frontage of given the proposed new upper level and the removal of existing heritage fabric; and
• result in the loss of the principal part of the house (which is consistent with the identified significance of the heritage conservation area) in the heritage conservation area.

1. In relation to the draft LEP and the increase in the FSR standard to 0.9:1 Mr Moore's evidence can be summarised as:

• The FSR standard is not an entitlement for development and is subject to the other controls within the LEP and DCP.
• Those controls emphasise a form that is modest and single storey when viewed from the street.
• There is a feasible development option for "an alternative proposal for a rear upper level extension of this house, set behind the retained main roof line and not requiring the extensive demolition required by the current proposal" (Exhibit H).

1. In the alternative Ms Hill argues that:

• the relevant significant characteristics of the heritage conservation area that once applied to the property as a "group of identical dwellings" have been extinguished;
• "the single storey character is not an important element of the building due to the changed setting of two storey buildings" (Exhibit H);
• the proposed alterations to the subject building are in an area of the heritage conservation area with low integrity and the proposed works will have minimal impact on the significance of the heritage conservation area when considered as a whole;
• that the proposed roof replaces an existing roof of the same form and the development retains existing fabric within the front façade. This approach is consistent with the objectives of Council's Alterations and Additions Controls C.1.3, in particular objective (a)(b) and (h);
• in proximity of the site the character can be described as single and two storey property with a mixture of architectural styles. Between 21-49 Lamb Street only three properties are single storey;
• the proposed development will have little impact on the significant characteristics of the heritage conservation area. There is no impact to the side streets or back lanes or the allotment shape. The dwelling will remain face brick and the finishes and detail of the building are retained intact. Whilst there is to be an additional storey, the building will remain legible due to the retention of finishes and detail (Applicant's submissions).

1. It was Ms Hill's oral evidence that the existing building has primarily an elevational contribution to the heritage conservation area and the distinctive neighbourhood of Nanny Goat Hill. It is her evidence that the recent LEP increase in the FSR standard envisages a desired future character that involves an increase in floor space on the site. Ms Hill concludes that the scope for expanding floor space with the size and narrow allotment width of the subject site is limited. It is her conclusion that there is an inherent conflict between the increased FSR standard and the desire of Council at C1. 4 (control 6) to retain the whole roof form and C1.4 (control 3) to resist demolition of the roof form or the front two rooms of the dwelling.

Discussion

1. Whilst the variation to the FSR development standard under cl. 4.6 was not raised by Council, in the Statement of Facts and Contentions, the Court is bound to consider the variation request prior to proceedings to merit amendment of the application as it is a precondition to determination.
2. The applicant seeks the Court to place significant weight on the Draft LEP and the new FSR control of 0.9:1. I note it is the agreed position of the parties that the proposed development complies with this new standard.
3. Giving consideration to this draft instrument I make the following observations:

• the lot size of the subject site is 147.1 sqm (Exhibit 1).
• the existing dwelling has a gross floor area of 70.4 sqm or an FSR of 0.48:1 (Exhibit D). This represents close to the floor space available in a compliant scheme (73.55 sqm).
• The difference in gross floor space between the applicable controls and the draft instrument is approximately 59sqm.
• By reference to Exhibit F, this accords with the quantum of floor space sought by the applicant at the first floor.

1. I accept the evidence of Ms Hill that the narrow frontage of the site and its small overall area are a constraint to the potential options available for the redevelopment of the property. This constraint appears to be in part the planning purpose behind the increased FSR provision for small lots in the draft LEP. However I accept the evidence of Mr Moore that the FSR standard is not an entitlement for development and needs to be read in conjunction with the remaining planning controls.
2. The draft instrument is relevant to the amendment of the variation as an objective of the FSR standard is compatibility with desired future character.
3. I am satisfied that in considering the required question of the compatibility of the proposed development with the desired future character in relation to building bulk, form and scale the draft instrument will not result in a significant divergence in character. This is because that standard must be read in conjunction with the statement of significance for the heritage conservation area, the characteristics of the distinctive neighbourhood and the DCP controls at C1.3 and C1. 4. Whilst the draft LEP provides a potential for an additional 73.55sqm the acceptability of this is tested against the relevant planning controls.
4. Council's DCP controls when considered in the entirety clearly indicate a desired future character that preserves the values or the significance of the Heritage Conservation Area and the unique characteristics of the locality. For the subject site those characteristics are detailed at C.2.2.4.2 Nanny Goat hill Distinctive Neighbourhood. Controls 1 and 2 of this section state: C1: Preserve the character of the area by keeping development consistent in architectural style, form and material. C2: Preserve and enhance the predominant low scale 'cottage' character of the residential streets.
5. The above, in conjunction with the statement of significant for the heritage conservation area and the LEP controls, is the desired future character the development is required to be consistent given that cl. 4.4(1)(a) seeks to; "ensure that residential accommodation is compatible with the DFC of the area in relation to building bulk form and scale".
6. In considering the evidence of the experts and with the benefit of the site inspection I find that the development is not consistent with objective (a)(i) of the FSR standard for the following reasons:

• By reference to the planning controls the desired future character of the locality seeks to maintain a single storey, modest architectural character within the streetscape. The proposed alteration to the front of the cottage is not compatible with this intent.
• I accept the evidence of Mr Moore that the value of the cottage, whilst diminished due to its relationship with the neighbouring properties, makes an important contribution to the values identified in the distinctive neighbourhood. These values are sought to retained in the future character of the locality (refer C1 and C2 of C.2.2.4.2 of the DCP).
• The two storey form of the development, by being a continuation of the front wall and a relocation of the roof form to the first floor, is incompatible with the desired future character of a predominately single storey form and is of a scale that is inconsistent with it particularly when viewed from within the heritage conservation area.
• In considering the draft instrument I accept that there is an alternative approach to the site identified by Mr Moore and I am not persuaded by the evidence of Ms Hill that the DCP controls are in conflict with the intent of the draft instrument to allow an increase in floor area on the site.

1. Further the FSR standard, at objective (a) (iii) seeks to "minimise the impact of the bulk and scale of buildings". I accept the evidence of Mr Moore that the bulk and scale of the proposed first floor addition as viewed from Lamb Street has a detrimental impact on the heritage conservation area. I am satisfied on his evidence and my observations on the site view that this impact is sufficient for the development to be considered inconsistent with objective (a)(iii) of the FSR standard.
2. The proposed demolition of the existing roof and fabric will diminish the contribution of the cottage to the heritage conservation area. I am satisfied that as a consequence the works proposed will erode the identified values of the conservation area and its significance as a whole.
3. It is clear from the site view and a reading of the existing plans in Exhibit F that the existing dwelling is not so compromised to not exhibit the significant characteristics that are identified in the statement of significance for the heritage conservation area. The proposed alterations are not consistent with the expected change through "modest additions and discrete alterations" envisaged by the management statements for the heritage conservation area.
4. For the preceding reasons, pursuant to cl. 4.6(4)(a)(ii) I find the development is inconsistent with the nominated objectives of the FSR standard and the variation request should not be upheld.
5. Clause 4.6 is a precondition that must be satisfied before consent can be granted. Given the finding that the variation request should not be upheld there is no power to grant consent to a development application that does not comply with the standard and the application must fail.

Other contentions

1. Having found that the FSR standard should not be varied the development application must be refused. Consequently it is not necessary to deal with the other contention in the proceedings.

Orders

1. The orders of the Court are: 1. The variation request pursuant to cl.4.6 of the Leichhardt Local Environmental Plan 2013 is not sustained. 2. The appeal is dismissed. 3. Development application DA D/2017/371 for alterations and additions to the existing dwelling at 25 Lamb Street Lilyfield is refused. 4. The exhibits are returned with the exception of exhibits 1, D and G. ………………………. D M Dickson Commissioner of the Court

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