McKees Legal Solutions v Leichhardt Council

CASES CITED: Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 Parrott v Kiama [2004] NSWLEC 77

APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Ms R McCulloch, solicitor SOLICITORS Pikes Lawyers

JUDGMENT:

• 7 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10385 of 2009 McKees Legal Solutions v Leichhardt Council

JUDGMENT 1 COMMISSIONERS: This is an appeal against the refusal by Leichhardt Council (the council) of Development Application D/2009/46 for the subdivision of an existing lot into 2 Torrens Title lots at 24 Pearson Street, Balmain East (the site). 2 The contentions raised by the council relate to whether the proposed subdivision will provide the opportunity for a dwelling that complies with the council's planning controls and in the event a dwelling could be constructed on a new lot created by the subdivision, whether the dwelling would adversely affect the heritage significance of an adjoining heritage item and other nearby heritage items. The site and surrounding area 3 The site is Lot 100 in DP 872400 with a street frontage of 17.39 m and side boundaries of approximately 49 m giving a total site area of 819.1 sq m. The northern part of the site has a slight slope towards the south to a sandstone cliff face located around 36 m from the northern boundary. South of the cliff face, the land continues to slope gradually towards and an irregular dry-packed stone retaining wall up to 2 m in height and located about 6 m south of the sandstone cliff face. The retaining wall extends east of a sandstone rock face/outcrop, which is located in the south western portion of the site. South of the retaining wall, the ground surface continues to gradually slope towards another retaining wall located approximately 4 m away, along the southern boundary of the site. This retaining wall is approximately 4 m in height and located adjacent to the southern boundary, shared with properties in William Street. Expansive views are available of Johnstons Bay towards Pyrmont from the site. 4 The northern part of the site, at the Pearson Street frontage, is occupied by a single storey Victorian gothic cottage with attic and is called "Rothesay". It is identified by the council as a heritage item. Rothesay is currently unoccupied and in a poor state of repair. The southern part of the site, contains only retaining walls and no structures. Crossing the site an east-west direction is a rock ledge revealing previous quarrying activity and which forms part of the historic character of the area. Rothsay is situated above this rock ledge and was built after quarrying ceased.

5 The surrounding area contains a range of building forms. Directly to the east and west of the site are three-storey brick residential flat building with garages below (24A and 26 Pearson St, respectively) and one and two-storey brick semi-detached dwellings to the south, with frontage to William Street. The proposal 6 The proposal provides for the subdivision of Lot 100 into 2 Torrens Title lots, being Lot 1 and 2. Lot 1 will have a frontage to Pearson Street, an area of 561.5 sq m and contain Rothesay. Lot 2 is trapezoidal in shape and has an area of 257.4 sq m. The northern boundary would run generally east-west through the southern section of the rear garden of the existing dwelling and then extend over the rock ledge, also running east-west across the site and include the land filled and retained by the existing retaining walls.

7 Both lots rely on a Right of Way, that currently benefits the site over the existing shared access way with reciprocal rights of carriageway, located on the site and 24A Pearson Street. 8 The application includes a concept plan and building envelope for a dwelling on the Lot 2 but approval is not sought for the erection of a dwelling.

9 The applicant seeks support for the proposed subdivision on the basis that the sale of the newly created lot would return funds, which would then be applied to the conservation of Rothesay. The applicant would accept conditions of consent to achieve this aim. Relevant planning controls 10 The site is located within the Residential zone under Leichhardt Local Environmental Plan 2000 (LEP 2000). The subdivision of the land is permissible within this zone. Clause 7(3) provides that consent must not be granted unless the Court has taken into consideration the relevant objectives of the Plan and is satisfied that the development is consistent with those objectives.

11 Clause 13 provides General Objectives, cl 15 provides Heritage Conservation Objectives, cl 16 provides specific provisions for Heritage Items (cl 16(3)), Development in the vicinity of a heritage item (cl 16(7)) and Conservation Areas (cl 16(8)). Clause 30 addresses the subdivision of land and states: 30 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, dimensions and amenity to satisfy the needs of future residents and businesses, and (b) protect the urban form, scale and density of the locality. 12 The site is a heritage item of local significance under Schedule 2 of LEP 2000 and is located within the Balmain Heritage Conservation Area. Rothesay, formerly "Eric Villa" was erected between 1870 and 1872 and occupied Lot 1 and part of Lot 2 of the original estate Rothesay is described as a rare example of a Late Victorian cottage. The State Heritage Inventory provides the following information on the dwelling: "Rothesay" single storey and attic storey. Stucco and terracotta tiled roof house, converted to flats. Best example in Balmain of a Victorian, gothic cottage "orne". Surviving example of the marine villas? that once lined the East Balmain foreshores orientated to the city. Compatible with Florence Villa at 49 Leichhardt Street, Glebe, circa 1873. Designed by A Thornley Junior. 13 Other heritage items identified in LEP 2000 and located in close proximity to the site are located at 25 and 27 William Street and 11 Pearson Street. A number of other heritage items are located in the locality.

14 Leichhardt Development Control Plan (the DCP) applies. Part A7.0 provides requirements for Heritage Conservation and Part 10.6.2 provides requirements for the East Balmain Distinctive Neighbourhood. Part B provides requirements for residential development, particularly Part B1.1 - Design Element 1 - Demolition, site layout, subdivision design, Part B1.2 - Design Element 1 - Buildings Form, Envelope and Siting, Part B1.3 - Design Element Car parking, Part B 3.1 -Solar access and Part B 3.3 -Visual privacy. Heritage The evidence 15 On the heritage issues, Mr Robert Moore provided evidence for the council and Mr Robert Staas provided evidence for the applicant.

16 Mr Moore states that the site of Rothesay has been progressively reduced by subdivisions facilitating the construction of surrounding buildings and houses, particularly the adjacent apartment blocks (each side), which have left the house on a comparatively small site. The land behind Rothesay appears to have remained connected to the heritage item partly because of its topography and consequent difficulty to develop. Historically, this land was likely to have been used for ancillary buildings, stables etc. 17 Mr Moore identifies the following areas of heritage impact: o the loss of land from Rothesay, with its potential to support the continuing, future use of the property as a residence, o the likely impact on Rothesay because of the presence of a dwelling on the proposed new lot, and the potential effect on the significance by severing the visual relationship of the house with the harbour, o the likely impact of the proposed lot, and consequent dwelling, on the adjoining properties including the dwellings in William Street, below proposed Lot 2, and o the loss of archaeology and cultural heritage features on the affected land, including the rock formation, which shows evidence of quarrying. 18 On the first two matters, Mr Moore states that the creation of a new lot poses immediate conflict with the heritage significance and long-term conservation of Rothesay. The house can be seen as part of the evolving 19th-century village of East Balmain which has always enjoyed a special relationship with the harbour, and in this case, a visual relationship. In his opinion, the view of the harbour from the rear of Rothesay has become more valued with time and should be seen as one of the more considerable assets of Rothesay. A reduction in the land area will also restrict the use of Rothesay as a dwelling and will critically limit the opportunities for any improvement. The outlook from Rothesay onto the car parking platform shown on the concept plan is unacceptable in heritage terms. 19 The potential conflict with the dwellings below and adjacent to the site in William Street will have a dramatic adverse impact through the removal of solar access as well as the sense of space and daylight. A dwelling of the form shown on the concept plan will clearly obliterate evidence of the history of the site and the area, particularly the loss of the former quarrying work.

20 Mr Moore considers that the subdivision will unacceptably compromise the heritage significance and conservation prospects of Rothesay and the ensemble of heritage listing buildings and conservation area townscape of which it is part. The development will involve a substantial loss of supportive potential and amenity for Rothesay and the adjoining heritage listed cottages in William Street. Consent for the creation of Lot 2 will likely cause future contest with the council over the application of the proposed envelope restrictions, which will likely provide unsustainable and by which time the present application may have no interest. In his opinion, the proposal will provide no solutions for the site, only problems. 21 Mr Staas comes to the opposite conclusion. He states that the subdivision through the proposed building envelope controls and its compliance with the council's planning controls has sought to limit any adverse impact. Rothesay has a very highly modified curtilage and a setting constrained to the east and west by the residential flat buildings on either side. It retains a relationship with other heritage items in Pearson Street which are unaffected by the proposed subdivision and a relationship with the harbour that is retained through the site-specific building envelope controls that are to be enforced through conditions of consent. 22 He further states that there will be limited and acceptable changes to the southern outlook from the rear verandah of Rothesay, towards the harbour, as the views are already partly obscured by existing development in William Street. The present reduced physical curtilage will be further reduced however the existing visual curtilage will be retained. The views to the harbour and over the top of the houses in William Street are retained by the proposed envelope controls and the view back to the upper facade of Rothesay from the harbour is unaffected by the subdivision and any future resulting development based on the envelope controls. The resulting impact on Rothesay will be minimal according to Mr Staas.

23 In the opinion of Mr Staas, the excavation of the site will not have a significant adverse impact on any visual character in the area and will not significantly affect views to the area from the Harbour. The rock face is not identified as having heritage significance and the exposed rock face is not identified as a significant element of the character of the surrounding area.

24 Overall, Mr Staas considers that the subdivision is acceptable if appropriate conditions relating to the conservation of Rothesay and the imposition of strict building envelope controls for future developed are adopted as conditions of approval. On this basis, any development resulting from the subdivision would have limited and acceptable impact on the identified heritage significance of the surrounding heritage items and would result in no acceptable adverse amenity impacts. The findings 25 LEP 2000 and the DCP provide a range of controls that are relevant. The heritage conservation objectives seek to "protect, conserve and enhance the cultural heritage" (cl 15(a)), to "protect, conserve and enhance the character and identity of the suburbs places and landscape of Leichhardt" (cl 15(b)) and to "prevent undesirable incremental change" (cl 15(c)).

26 Consent must not be granted for development of land in the vicinity of a heritage item unless an assessment has been made of the effect of the carrying out of the development will have on the heritage significance of the heritage item and its setting, as well as on any significant views to from the heritage item (cl 16(7)). Consent must also not be granted for 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 the compatibility of the proposed development (cl 16(8)(b)).

27 The requirements for the East Balmain Distinctive Neighbourhood, in relation building elements seeks to "maintain the character of the area by keeping development consistent in architectural style, building form and materials" and "all development is to be sympathetic to the historic and conservation values of the neighbourhood" and in terms of landscape, seeks to "preserve the integrity of the escarpments. Development around escarpment is to avoid cutting, changing the topography or removing associated vegetation around the escarpment. Buildings and structures are to avoid dominating the escarpment "(A10.6.2 Pt3).

28 Also relevant are comments in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 where the case deals specifically with the use of a building envelope in a heritage context. The relevant comments are: 33 Our task is to assess the proposed building envelopes' impact on the heritage significance of the Church, Rectory and associated open space. LEP 1998 defines heritage significance as historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance. While historic, cultural, social, architectural and aesthetic significance all apply to St Johns Church, it is the aesthetic significance on which the proposed development is most likely to have an impact. In addition, the church has significance as a landmark in the streetscape.

34 How can impact on the aesthetic and landmark significance of a heritage item be assessed? When is the impact acceptable? It seems to us that four main principles apply to such an assessment: First, new development should not unreasonably reduce public views of the heritage item and it's setting. This is because the pleasure people derive from a landmark heritage building is by viewing it. If one cannot see a landmark, it ceases to be one. Second, new development should not visually dominate the heritage building. A dominant new building, even when it does not obscure the heritage building, will render the experience of seeing the heritage building more complex and less delightful. Third, new development should not unreasonably overshadow the heritage building. Fourth, new development should relate to the character and form of the heritage item. This does not require imitating style or using the same materials. It requires only that new development should sit comfortably in a view that embraces both the old and the new.

29 With the benefit of an inspection of the site and the surrounding streets, from the harbour and if the proposed subdivision, concept plan and building envelope are considered in the framework of the council's planning controls, we are satisfied that the evidence of Mr Moore should be preferred over that of Mr Staas.

30 Clause 16(7) requires that an assessment be made of the effect of the carrying out of the development will have on the heritage significance of the heritage item and its setting as well as on any significant views to from the heritage item. There can be no doubt that the setting of Rothesay has been unacceptably eroded over time through the development of the land originally part of the setting of Rothesay. The two residential flat buildings directly to the east and west of Rothesay visually overpower the single storey heritage building from a number of locations and particularly when standing in the rear yard of Rothesay. While Rothesay is currently in some disrepair, both Mr Moore and Mr Staas agree that the building is of local significance and worthy of its heritage item status. Recently work has been undertaken to the place aimed at reinstating its single residence character and removing intrusive elements. 31 Given the undisputed evidence over the significance of the building, and even taking into account that the significance has been diminished through the gradual encroachment on its setting by unsympathetic development, we are not convinced that the little area that remains of its original setting should be further diminished through the subdivision and ultimate use for a dwelling.

32 Rothesay is potentially visible from a number of locations, some more important than others. We would accept that any building on proposed Lot 2 would generally not be visible from Pearson Street and as such would not adversely impact on the heritage significance of Rothesay from this location and would be a reason to refuse the application. Similarly, we are satisfied that there will be no unacceptable impacts on any other heritage item that would support the refusal of the application.

33 The views to and from the heritage items in William Street and from the harbour however impinge more directly on Rothesay. The heritage items at 25 and 27 William Street are a pair of semi-detached dwellings. No 27 William Street shares most of a common rear boundary with the site while 25 William Street does not share a common rear boundary but is directly to the east of the site. These heritage items are located at a much lower level than the level of the site and their rear boundary generally forms a cut in the natural topography up to 4 m in height. The existing setback from the dwelling at 25 William Street to Rothesay is around 33 m. The proposed setback to the deck shown on the concept plan is around 12 m. The relative height difference is around 7.5 m. In our opinion, this relationship is not optimal given to the heritage listing of 25 and 27 William Street however because of the setback and the relatively large difference in height between the heritage items, it would not in our opinion, be a sufficient reason to refuse the development application on heritage grounds.

34 The views from Rothesay to the harbour and the views from the harbour to Rothesay, in our view, are significantly affected by the proposed concept design. The rock ledge, and the strongly gothic character of Rothsay above it are prominent from the harbour, and contribute to the historic character of the area, with its characteristic quarrying scars, the result of early building construction in the area. In accepting that the applicant has reasonably attempted to reduce the height of the concept design to minimise the impact of views to and from Rothesay from the harbour, we do not accept that these attempts have been successful. The site inspection from the harbour was particularly helpful in assessing the impact of the proposal on Rothesay. The observations from the harbour highlighted the prominence of Rothesay. Its prominence increases with distance from the site as the view corridor expands. While the adjoining residential flat buildings are clearly unsympathetic to the heritage status of Rothesay, they unintentionally embellish its prominence by framing the smaller item on each side. The visual prominence of Rothesay is further increased from the harbour by its location above the excavated cutting. Visually, Rothesay sits above an undeveloped part of the headland that is characterised by a relatively dense building form that seeks to take advantage of the availability of water views. The placement of a dwelling in the area currently occupied by the excavated cutting will simply serve to remove the feature that contributes to its prominence and the loss of this feature will relegate Rothesay to just part of the mass of dense building form when viewed from the harbour. 35 We are also not satisfied that views from Rothesay to the harbour are satisfactorily addressed through the proposed concept design. Due to the poor state of repair of Rothesay, we were unable to enter the building and view the impact of the concept design, however sufficient information was provided to understand the likely impact on Rothesay. The views from the upper level attic area are unlikely to be affected by the concept design and the long distant views from the rear elevated balcony are also likely to be unaffected to a large extent although the shorter distance views will be blocked. Our concerns relate principally to the remaining open space area at the rear of Rothesay. This area has a height of around 22.1 m AHD whereas the maximum height of the concept design has a height of 22.9 m AHD. The current unconstrained views to the harbour will be restricted through the obstruction created by the roof form on Level 2 of the concept design. It is likely that all water views will be blocked from a seating position from the open space and limited in a standing position to the more distant views.

36 We are also satisfied that the intrusion of the roof form into the view catchment from Rothesay is an unacceptable impact on the significance of the heritage item. We agree with Mr Moore that the retention of the visual connection with the harbour is a key asset of the property and given the progressive reduction in the curtilage of Rothesay and over time, what remains of the curtilage should be strongly protected. We also agree with Mr Moore that the ongoing conservation of Rothesay for residential purposes is more likely to be facilitated through the provision of on-site facilities that relate to its residential use, such as adequate private open space, than if this area was subdivided and that this area used for the construction of an additional dwelling.

37 In accordance with cl 16(7), we find that the proposed subdivision will unacceptably impact on the heritage significance of Rothesay and its setting and on views to and from the heritage item. We are satisfied that the impact is of such significance that the development application should be refused and the appeal dismissed for this reason. 38 The proposed subdivision is also inconsistent with the relevant heritage conservation objectives in LEP 2000 in that it does not "protect, conserve and enhance the cultural heritage" (cl 15(a)), "protect, conserve and enhance the character and identity of the suburbs places and landscape of Leichhardt" (cl 15(b)) and "prevent undesirable incremental change" (cl 15(c)).

39 The proposed subdivision is also inconsistent with A10.6.2 Pt3 in the DCP in that it does not avoid cutting and changing the topography.

40 We also find that the proposed subdivision is in conflict with the first and second principles in Anglican Church Property Trust.

41 For completeness we will briefly deal with some of the other issues in contention. Planning issues 42 Even though the proposed development seeks only the subdivision of the land, cl 30 places a considerable constraint on granting approval for a subdivision. This clause provides a condition precedent to the granting of consent for the subdivision on the basis that, firstly the subdivision must provide an appropriate setting for development in relation to site area dimensions and amenity to satisfy the needs of future residents and secondly, the subdivision must protect the urban form, scale and density of the locality.

43 A complementary approach is adopted in Parrott v Kiama [2004] NSWLEC 77 where it states: 17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them. 44 The applicant addressed the requirements in cl 30 through a concept plan and building envelope for a dwelling on Lot 2 however the council contended that the concept plan and building envelope did not satisfy the requirements in cl 30. The specific contentions raised by the council are: o loss of solar access to the properties in William Street, o non-compliance with the Building Location Zone, o inconsistency with the existing subdivision pattern, o poor internal amenity for the concept designs, and o potential site contamination.

Solar access 45 The effect of shadows cast from the concept plan was a significant issue in the proceedings. The applicant provided comprehensive shadow diagrams that indicated the extent of existing shadowing and the additional shadows cast by the proposed concept plan both in a plan and elevational form. Particular emphasis was given to the impact of additional shadowing on existing southerly windows in the William Street properties. The building envelope and concept plan evolved during the hearing with adjustments made to minimise the overshadowing on the William Street properties. This resulted in an irregular shaped building envelope and a less than optimal internal design for the concept plan. 46 The final documents presented to the Court indicated a generally neutral effect on the William Street properties. There was some additional overshadowing on some windows and some existing shadows were removed from the existing windows.

47 The DCP provides requirements for solar access at Part B3.1. The identified principles seek to " minimise overshadowing of the habitable rooms and private open space of existing housing". In most cases, it could be said that the proposed development would satisfy this requirement however the properties in William Street have a north-south orientation. The south facing rooms at the rear of these dwellings currently receive very poor solar access due not only to the orientation but also due to the small separation between the rear of the dwellings and the 4 m cut. 48 At worst, it would be appropriate that there be no change to the solar access to these properties, and at best additional solar access should be provided. Building Location Zone 49 The DCP provides requirements for the Building Location Zone at Part B1.2. This zone is defined by the average front and rear setbacks of both adjacent buildings on either side of the site. In this case, the council argued that the concept design breached the average rear setback of the adjoining buildings.

50 In accepting that there was a breach of the average rear setback, we are satisfied that the breach was relatively small and would not be a reason to refuse the development application. In our opinion, the variation did not create any impacts relating to the amenity of residents, private open space and landscape patterns of the neighbourhood.

Existing subdivision pattern 51 The council contended that the approval of the subdivision would be inconsistent with the existing subdivision pattern within the area. While the proposed subdivision would create a battle-axe lot, we are not satisfied that a battle axe lot is so out of character with the subdivision pattern in the area that it would be a reason that would support the refusal of the development application. Contamination 52 The issue of contamination was not a significant issue in the proceedings and while it would need to be addressed, we accept that this could be adequately achieved through the imposition of conditions. It is not an issue that impinges on the major issues in the proceedings. Stability of existing retaining wall 53 This was an issue raised by a number of residents following the failure of part of the retaining wall in a location further to the west of the site. We accept that this is a genuine issue given the previous failure and the age and uncertain construction methods used for the retaining wall. Like the contamination issue, it is an issue that needs to be addressed however we accept that it can be done adequately through the imposition of conditions. 54 The tests imposed by cl 30 are now largely academic, given the unsuitability of the subdivision and the erection of a dwelling based on the concept plan because of the unacceptable heritage impacts. If these matters are put aside, and given the area and dimensions of proposed Lot 2, the subdivision could potentially provide an appropriate setting for a dwelling however because of the topographic constraints, the proximity of adjoining development and the likely need to address view sharing we do not accept that a subdivision should be approved without the concurrent approval of a dwelling on Lot 2. In our view, the subdivision falls squarely within those matters identified in Parrott where the constraints of the site would require a sensitive and careful dwelling design to minimise any impacts on surrounding development. Orders 55 The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application D/2009/46 for the subdivision of an existing lot into 2 Torrens Title lots at 24 Pearson Street, Balmain East is refused. 3. The exhibits are returned.

      G T Brown
      Commissioner of the Court

      Sharon Sullivan AO
      Acting Commissioner of the Court

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