Morosini v Leichhardt Council

CASES CITED: Winten Property Group v North Sydney Council 2001 NSWLEC 46

APPLICANT Ms M-L. Taylor, solicitor SOLICITORS Norman Waterhouse Lawyers

RESPONDENT LEGAL REPRESENTATIVES: Ms J. Reid, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal of Development Application No D/2005/64 by Leichhardt Council (the council) relating to the property at 44 Lamb Street, Lilyfield (the site) for alterations and additions to an existing dwelling house and the construction of a new swimming pool.

The site 2 The site is located on the eastern side of Lamb Street and comprises Lot 125 and Lot 126 in Section D of DP1474. It has a frontage of 9.7 m to Lamb Street and a depth of 30.48 m giving a total site area of 297.2 sq m. The site is generally flat. A single storey weatherboard is located on the site in addition to a garage and a number of shed-type structures facing a rear lane.

3 The property immediately to the south of the subject site is 46 Lamb Street and comprises a single storey weatherboard dwelling fronting Lamb Street and a garage fronting the rear lane. The dwelling is built in close proximity to its northern boundary for a length of 10 m and the rear section of the dwelling is set back approximately 4.8 metres from the northern boundary. The property immediately to the north of the subject site at 42 Lamb Street comprises a single storey weatherboard dwelling fronting Lamb Street and a garage fronting the rear lane.

4 The locality generally comprises single storey detached cottages although there are a number of 2-storey terraces located on the opposite side of Lamb Street. There is also a 2-storey dwelling house a short distance to the south. The proposal 5 The applicants seek consent to undertake alterations and additions to the existing dwelling and install a swimming pool. The specific details involve: + the retention of the two front bedrooms of the existing dwelling and part of the ground floor side walls to the rear, + the demolition of the remaining dwelling, + the reconfiguration and extension of the ground floor to comprise access + a new first floor comprising of bedrooms, study, en suite and rear-facing balcony with privacy screens to each side, + the construction of a swimming pool in the rear yard and + the conversion of the existing garage to a carport.

6 The proposal before the Court has been the subject of amendment following the lodgement of the application with the council on 18 February 2005, including amendments following the initial reports of the Court-appointed experts.

Relevant planning controls 7 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (the LEP). The proposed use is permissible within this zone. Clause 7(3) states that consent must not be granted unless consideration has been given to the objectives of the plan and that the proposal is consistent with those objectives. General objectives are found at cl 13, heritage conservation objectives at cl 15, and housing objectives at cl 17.

8 Clause 9(2) provides for a maximum floor space ratio (FSR) of 0.5:1. Clause 16(8) provides that consent must not be granted for certain works in a conservation area unless an assessment has been made of the extent to which the carrying out of the work would affect the heritage significance of the conservation area.

9 Leichhardt Development Control Plan 2000 (the DCP) also applies. The site is within the Nanny Goat Hill Distinctive Neighbourhood and the Eastern Residential Sector under the DCP. The DCP provides specific requirements for residential development. The DCP provides for a 3.6 m building envelope in the Nanny Goat Hill Distinctive Neighbourhood (Pt B1.2). New development is required to be located in the building location zone which is a zone determined by the front and rear setback of both adjacent buildings (Pt B1.2). Minimum setbacks, subject to performance standards, are set out in Pt B1.2. The DCP allows variations at its discretion to the setback requirements subject to the performance of the development under criteria established in B1.2. For solar access, adjacent buildings having an east-west orientation require solar access to be maintained to the habitable side rooms for a minimum period of 2 hours between 9 am and 3 pm at the winter solstice (Pt B3.1). The DCP provides requirements for the restoration of small houses (Pt B4.2). Statement of Issues 10 The council filed a Statement of Issues containing five issues and a number of sub-issues. The issues can be grouped into the following main areas:

(1) whether the proposed development has an unacceptable impact on the heritage conservation area, and

(2) whether the proposed development has an unacceptable impact on the solar access and perception of bulk to the property at 46 Lamb Street considering the breaches of the FSR and side setback requirements. 11 The matters raised by local residents are generally addressed in the consideration of the above two issues with the exception of the issue of loss of privacy. This is addressed later in the judgment.

The evidence 12 The parties agreed to the appointment of Mr Robert Staas as the Court-appointed heritage expert and Mr James Lovell as the Court-appointed town planning expert. Additional evidence was provided by Mr Alistair Brodie, a builder and building designer on behalf of the owner of the property at 46 Lamb Street.

Heritage conservation 13 On the issue of impact on the heritage conservation area Mr Staas stated that while he could not support the original application, the amended plan before the Court addressed his concerns. The works now proposed are modest in their visual impact and traditional in their character. The proposal is consistent with the existing and desired future character of the Nanny Goat Hill Distinctive Neighbourhood and the Eastern Residential Sector. While 2-storeys, the proposal maintains a single storey appearance from the street by use of split-levels and attic spaces in a manner common to many additions both in the area and generally.

14 Overall, the materials and forms are generally consistent with the original cottage style and the DCP requirements in Pts B1.2, B4.1 and B4.2. Mr Staas's evidence was not challenged and I accept his conclusions. Pursuant to cl 16(8), the proposal will not impact on the heritage significance of the conservation area. In my view, the proposal is also consistent with the objectives in cl 15.

Loss of solar access/ bulk 15 The loss of solar access to the adjoining property at 46 Lamb Street was the significant issue in the proceedings. Mr Lovell expressed concern at the adequacy of the documentation addressing this issue although further information was provided at the hearing to allow Mr Lovell to properly address this issue.

16 Ms Reid for the council submitted that the impact on the adjoining property was a direct result of the breach of the FSR and side setback requirements. While accepting that considerable changes to the proposal had seen it achieve less impact on the adjoining property, the proposal was still not at a point where approval should be granted.

17 Mr Lovell's assessment of the shadow diagrams concluded that there was compliance with the requirements in Pt B3.1 of the DCP. Accepting that 2 hours of sunlight was provided, he considered that the available solar access was close to 3 hours based on the sunlight covering approximately 50% of the adjoining property windows. I note that there is little difference between the shadows cast by the existing building and the proposed building up to midday in mid-winter. Even though the proposed additions create additional overshadowing after this time, some windows in the living rooms still maintain some solar access after this time.

18 While Mr Brodie agreed that a further reduction in height of some 500 mm would be acceptable to his client, the assessment by Mr Lovell of this further reduced level of the proposed building provided only a minimal increase in solar access to the adjoining property. I do not accept that when balanced against the reduced amenity of the proposed first floor rooms that the reduction of around 500 mm can be supported.

19 The bulk of the first floor addition was a further issue raised by the adjoining owner. The DCP 2000 requirements for a building location zone at Pt B1.2. In my assessment, the proposal satisfies the requirement in the DCP by locating the building form towards the front of the site. While the 2-storey section of the proposal will be visible from the courtyard area of the adjoining site, the impact is not so significant that it would require amendment.

20 I accept that genuine attempts have been made to reduce the perception of bulk on the adjoining property. I am also mindful that any additions to the existing dwelling have to consider the conservation area and changes to the setbacks on the upper levels could result in a building form that would be inconsistent with the objectives of the conservation area.

21 Clause 9(2) provides for a maximum FSR of 0.5:1. While not raised as an issue in the proceedings, Mr Lovell calculated the FSR at 0.52:1. The applicant recalculated the FSR at 0.506:1 and the council at around the same figure as Mr Lovell. As the FSR requirement is a development standard a SEPP1 objection was lodged for consideration.

22 Ms Reid was critical of the SEPP1 objection and Mr Lovell stated that it was not prepared in the form he would have chosen however I accept that with the additional evidence provided by Mr Lovell, the SEPP1 objection can be considered. The appropriate means of dealing with an SEPP1 objection is set out in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 where at par 26 a number of questions are posed. The development standard does not have any specific objectives although the SEPP1 objection addresses the plan objectives for Housing in cl 17 of the LEP. The relevant objective is objective (a) this states: to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character

23 Mr Lovell also states that the underlying objectives for FSR development standard generally relate to controlling bulk and scale and the potential amenity impacts on adjoining properties. In considering the SEPP1 objection, Mr Lovell states that he supported the variation to the FSR development standard largely because the additional floor area did not offend the suite of controls in the DCP so that the reduction in floor area would not necessarily result in a reduction in the impacts on the adjoining properties. The impacts, in this case being restricted to the bulk and overshadowing.

24 I accept his conclusions and find that if the variation to the development standard is tested against the underlying objectives mentioned earlier that compliance with the development standard would be inconsistent with the aims of SEPP1 and would tend to hinder the attainment of the object specified in s 5A(i) and (ii) of the Environmental Planning and Assessment Act 1979, consequently strict compliance wit the development standard is unreasonable and unnecessary in this instance and it follows that the SEPP1 objection is well-founded.

25 The side setback does not comply with the requirements of the DCP although I accept Mr Lovell's evidence that the departure can be supported. The reduced setback does provide for additional overshadowing however the impact easily satisfies the solar access requirements in the DCP. As previously stated the additions also satisfy the DCP requirements for the building location zone.

26 The issue of loss of privacy from the rear first floor deck was seen as an issue although Mr Lovell accepted that it was not a matter that required amendment. I accept this conclusion as the deck is relatively small and would not necessarily encourage the congregation of occupants, particularly as access is only available from a bedroom and study. I also note the inclusion of privacy screens at either end of the balcony.

27 Of the council's draft conditions the applicant opposed deferred commencement conditions 1, 2, 3 and 4. These conditions sought amendments to the design, however for the reasons mentioned earlier in the judgment no further amendments are necessary so the conditions can be deleted.

Orders 28 For the foregoing reasons the orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2005/64 for alterations and additions to an existing dwelling at 44 Lamb Street, Lilyfield is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, 3 and A.

      G T Brown
      Commissioner of the Court

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