McKees Legal Solutions v Leichhardt Council

McKees Legal Solutions v Leichhardt Council - [2009] NSWLEC 1346 - NSWLEC 2009 case summary — Zoe

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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.

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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.

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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.

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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.

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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.

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Judgment (40 paragraphs)

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Cases Cited (2)