COMMISSIONER: This is an appeal against the deemed refusal of development application DA/2020/0286 (the DA) by the respondent pursuant to s. 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The DA is located at 2 Caroline Street Balmain NSW 2041 being the whole of the land in Lot 8 Deposited Plan 11121 (the Site). The Site has a 12.192m frontage to Caroline Street at its north east elevation, a lot depth of 34.74 at both north west and south east side boundaries, and a lot width of 12.192m at its rear south west boundary.
The DA is for the demolition of an existing dwelling, subdivision of the site from 1 lot into 2 lots, and planning approval for 2 two-storey townhouses with off street parking.
[2]
Background and Class 1 Appeal
The proposal is located at 2 Caroline Street, Balmain. Caroline Street is a short cross-street connecting Waterview Street and Colgate Avenue, which run in a north-easterly direction from Queens Place and Darling Street respectively to Mort Bay.
The site contains a single-storey clad-house with a hipped tile roof built in the late 1950s. A timber front fence is built on a low sandstone base wall and there is no vehicular access to the site. There are several trees and shrubs at the front, side and rear of the house.
The site is set in a rectangular subdivision bounded by Caroline Street, Waterview Street, Duncan Street and Colgate Street, with Jaggers Lane running parallel to Waterview Street, at the rear of the Waterview dwellings from Caroline Street to Duncan Street.
Adjoining to the south-east are houses at nos. 12, 14 and 16 Colgate Avenue which have small back yards bordering the site. Adjoining to the north-west at no. 4 Caroline Street is a freestanding Victorian 2-storey weatherboard terrace-style house. Adjoining to the rear are the back yards of a pair of semi-detached houses at nos. 4 and 6 Duncan Street. The relevant Waterview Street properties back onto Jaggers Lane and consist of Victorian 2-storey terrace-style houses.
The site is within walking distance of public transport, both bus and ferry services providing public transport to the City CBD and district destinations.
The proposal was originally lodged with the respondent (Council) on 22 April 2020. The DA was made with the consent (in writing) of the owner of the Site, being the Applicant in these proceedings.
The Site is zoned R1 General Residential pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP2013).
The Site is not listed as an item of environmental heritage significance, however, it does contain archaeology associated with "Waterview House" and is situated within the Waterview Estate Heritage Conservation Area.
The DA was notified for 14 days between 30 April 2020 to 14 May 2020 to surrounding residents.
On 15 June 2020 the applicant filed an appeal against Council's deemed refusal of the DA.
On 23 July 2020 the Council filed its Statement of Facts and Contentions (SOFAC) and set out its Contentions as:
1. Overshadowing of adjoining properties.
2. Negative impacts on the values of the WHCA (Waterhouse Heritage Conservation Area), inconsistent with the streetscape and inconsistent with the desired future character.
3. Setbacks.
4. The proposal exceeds the floor space ratio for 2B dwelling.
5. Car parking.
6. Drainage.
7. Trees.
8. View impacts.
On 21 July 2020, on the application of the Applicant, the Court ordered that the proceedings be conducted pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). The Court set the matter down for a s 34AA conciliation and hearing on 13 and 14 October 2020.
Informal negotiations continued between the Applicant and Council until 13 October 2020.
On 13 October 2020 the parties took part in a s 34AA conciliation and hearing before the Court, beginning with an onsite view.
The conciliation part of the s 34AA was terminated on the afternoon on 13 October 2020. I presided over the conciliation conference.
On 14 October 2020 the s 34AA hearing commenced and the Applicant filed in Court a Notice of Motion and Affidavit in support thereof by Mr S W Griffiths both dated 14 October 2020 to rely upon amended plans. The Notice of Motion is Exh "A" and the Affidavit of Mr Griffiths is Exh "B". The Amended Plans are Exh "C" and "D".
The Council received a copy of the draft amended plans on 4 September 2020 (Exh B paragraph 6 on page 2). Further minor amendments were made to the draft amended plans and the final version is in Exh's C and D. Council did not object to the Applicant being granted leave to rely upon the amended plans.
On 14 October 2020 I granted leave to the Applicant to rely upon the amended plans (Amended DA) as set out in his Notice of Motion and affidavit in support by Mr Griffiths dated 14 October 2020. The plans which are now before the Court are:
1. 2017/15/DA/00/Rev K Cover page dated 14/10/20
2. 2017/15/DA/1.01/Rev K Site Analysis Plan dated 14/10/20
3. 2017/15/DA/1.03/Rev J Basement Plan dated 12/10/20
4. 2017/15/DA/1.04/Rev K Ground Floor Plan dated 14/10/20
5. 2017/15/DA/1.05/Rev K 1st Floor Plan dated 14/10/20
6. 2017/15/DA/1.06/Rev K Roof Plan dated 14/10/20
7. 2017/15/DA/1.07/Rev F Draft Subdivision dated 20/03/20
8. 2017/15/DA/2.01/Rev K Northeast Elevation dated 14/10/20
9. 2017/15/DA/2.02/Rev K Southwest Elevation dated 14/10/20
10. 2017/15/DA2.03/Rev K Elevation-Southeast 2A Caroline St dated 14/10/20
11. 2017/15/DA2.04/Rev J Elevation-Northwest 2B Caroline St dated 14/10/20
12. 2017/15/DA/3.01/Rev K Section AA dated 14/10/20
13. 2017/15/DA/3.02/Rev K Section BB dated 14/10/20
14. 2017/15/DA/3.03/Rev K Section CC dated 14/10/20
15. 2017/15/DA/3.04/Rev K Section DD dated 14/10/20
16. 2017/15/DA/3.05/Rev J Section EE dated 12/10/20
17. 2017/15/DA/4.02/Rev K Shadow Diagram June 21 9:00am dated 14/10/20
18. 2017/15/DA/4.03/Rev K Shadow Diagram 10:00am 21 June dated 14/10/20
19. 2017/15/DA/4.04/Rev K Shadow Diagram 11am June 21 dated 14/10/20
20. 2017/15/DA/4.05/Rev K Shadow Diagram 12 noon June 21 dated 14/10/20
21. 2017/15/DA/4.06/Rev K Shadow Diagram 1pm June 21 dated 14/10/20
22. 2017/15/DA/4.07/Rev K Shadow Diagram 2pm June 21 dated 14/10/20
23. 2017/15/DA/4.08/Rev K Shadow Diagram 3pm June 21 dated 14/10/20
24. 2017/15/DA/4.09/Rev K Shadow Elevations Diagrams 16 Colgate Ave dated 14/10/20
25. 2017/15/DA/5.01/Rev K Area Schedule dated 14/10/20
26. 2017/15/DA/5.02/Rev J Finishes Schedule dated 10/10/20
The Amended DA addressed merit issues raised by the Council in its SOFAC, and in 'without prejudice' discussions during the conciliation conference and, apart from deleting the basement parking access (and replacing the basement ramp with an internal car lift within an at-grade grade for Dwelling 2B and at-grade parking for 1 car in Dwelling 2A) the Amended DA plans did not fundamentally change the DA. I find the development as set out in the Amended DA substantially the same proposal as the original proposal.
The hearing was adjourned to allow the Council to further notify the objectors of the Amended DA, and for the town planning, heritage and engineering experts to confer on the amended plans and file supplementary expert reports.
On the fourth day of the hearing the parties settled the matter, and the hearing became a Consent Orders' Hearing.
[3]
Jurisdictional Considerations
This appeal is brought against a deemed refusal (s 8.11 EPA Act) pursuant to s 8.7 (1) of the EPA Act.
The Court has power to determine the appeal in exercising all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of this matter (s 8.14 of the EPA Act).
The relevant planning controls are set out below, and further discussed under the heading of "Contentions".
[4]
State / Regional Environmental Planning Policies
Pursuant to cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. As the land being historically used for residential purposes, in accordance with the advice of Council:
1. The Site poses no risk of contamination;
2. No further investigation of the Site is warranted; and
3. The Site is considered to be suitable for the Amended DA.
Pursuant to cl 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) and the Sydney Harbour Catchment Map the Site is located within the Sydney Harbour Catchment. However, the Site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP. The Site is also not located in the vicinity of a heritage item listed under the SREP. The Amended DA is permissible with respect to the SREP.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 the Proposal is a BASIX affected development, containing a BASIX affected building. The DA was accompanied by BASIX certificates for each of the two proposed dwellings and these certificates were updated as part of the Amended DA and became Exh "G". The Council advised, and I accept, that the updated BASIX certificates in Exh G are deemed satisfactory.
Both the original DA and the Amended DA require the removal of a number of trees from the Site. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) concerns the protection/removal of vegetation identified under the SEPP and gives effect to the local tree preservation provisions of the Leichhardt Development Control Plan 2013 (LDCP2013). Having considered the relevant matters under the Vegetation SEPP, the Council advised it is satisfied that the Amended DA is permissible subject to conditions. See further discussion in the Contentions below.
[5]
Leichhardt Local Environmental Plan 2013 (LLEP2013)
The Council nominated the following aims of LLEP2013 as relevant:
Clause 1.2 Aims of Plan
…
(2)
…
(c) to identify, protect, conserve and enhance the environment and cultural heritage of Leichhardt;
…
(l) to ensure development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area.
(m) to ensure that development provides high quality landscaped areas in residential developments;
The site fall within Zone R1 General Residential. The objectives of the Zone include relevantly:
To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.
…
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.
Attached dwellings are permitted within the Zone with consent.
Clause 5.10 - Heritage Conservation Area. The Site is located within the Waterview Estate Conservation Area as identified in LLEP2013, and the GML Inventory Waterview Estate Conservation Area.
The Amended DA is characterised as for the purpose of subdivision of the Site and construction of two dwelling houses with ancillary works. The Amended DA is permissible with development consent in the R1 General Residential zone under the LEP.
Pursuant to cl 4.1(2) and (3) and the Lot Size Map of LLEP 2013 the applicable minimum lot size resulting from a subdivision of the Site is 200sqm. The Amended DA plans in Exh C include two Torrens titled lots of 211.75sqm. The Amended DA complies with the requirements of cl 4.1(2) and (3) LLEP2013.
Pursuant to cl 4.3 and the Height of Buildings Map of the LLEP2013, the Court notes that Council has not adopted a maximum height of building development standard for the Site.
Pursuant to cl 4.3A(3) of the LLEP2013, development consent must not be granted to development to which the clause applies unless:
1. For lots equal to or less than 235sqm in area, a minimum of 15% of the site area is provided as landscaped area (cl. 4.3A(3)(a)(i)); and
2. Site coverage does not exceed 60% of the site area (cl 4.3A(3)(b)).
The Amended DA plans in Exh C provide two lots of 211.75sqm which have 55.33sqm and 52.4sqm of landscaped area per the two proposed lots, equating to 26.1% and 24.7% of the total areas of the lots respectively. The DA complies with the requirements of cl 4.3A(3)(a)(i) of the LLEP2013.
The Amended DA plans in Exh C provide 108.4sqm and 113.6sqm of site coverage per the two proposed lots, equating to 52% and 53.6% of the total areas of the lots respectively. The Amended DA complies with the requirements of cl 4.3A(3)(b) of the LLEP2013.
Pursuant to cl 4.4(2) and the Floor Space Ratio Map of the LLEP2013, the floor space ratio (FSR) applicable to the Site is 0.5:1. However, pursuant to cl 4.4(2B)(b)(ii), the maximum FSR applicable to a lot with an area of 150sqm or more but less than 300sqm, is 0.9:1.
The Amended DA plans in Exh C provide 175.7sqm and 188.1sqm of gross floor area per the two proposed lots, equating to FSRs of 0.83:1 and 0.89:1 for the lots respectively. The Amended DA complies with the requirements of cl 4.4(2B)(b)(ii) of LLEP2013.
Pursuant to Schedule 5 and the Heritage Map of the LLEP2013, the Site is located within 'Waterview Estate' heritage conservation area and is within the vicinity of (but not adjoining) a number of items of local heritage significance. Pursuant to cl 5.10(4) of LLEP2013, the Court must consider the effect of the proposed development on the heritage significance of the area. This is discussed below under "Contentions".
While not listed under the LLEP2013 or under any other environmental planning instrument as an archaeological site, the Site also contains archaeology (footings of the long-since demolished dwelling) associated with the former Waterview House. The Applicant has obtained a permit under s 140 of the Heritage Act 1977 for archaeological work and excavations within the Site (Permit). The Amended DA plans in Exh C are consistent with the terms of the Permit. The archaeology is discussed below under "Contentions".
Pursuant to the Acid Sulphate Soils Map of the LLEP2013, the Site is classified as Class 5 acid sulphate soils land. While located within 500 metres of Class 2 land, the DA does not involve works below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Therefore, the Amended DA does not require consent under cl 6.1 of the LLEP2013.
The Proposal includes earthworks, as defined under LLEP2013 (including excavation of ground material for the forming of the basement levels of the proposed dwellings). Pursuant to cl 6.2(3) of the LLEP2013, prior to the grant of any development consent for earthworks the consent authority must consider the earthworks matters identified under (a) to (h) of the clause. Having considered those matters with reference to the geotechnical report prepared by the Applicant (Exh "F" tab 14 report of AW Geotechnical Pty Ltd dated 17/09/17) the Court is satisfied that the Amended DA will not have any detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items of the surrounding land.
Pursuant to cl 6.3(3) (flood planning) and 6.4(3) (stormwater) of the LLEP2013, development consent must not be granted unless the consent authority is satisfied of the flood planning matters identified under (a) to (e) of the clause; and the stormwater management issues identified under (a) to (c) of the clause. Having considered those matters with reference to the stormwater drainage concept plans prepared by the Applicant (which have been updated as part of the Amended DA - EXH "D"), the Court is satisfied that the flood planning and stormwater management have been sufficiently addressed.
[6]
Leichhardt Development Control Plan 2013
Leichhardt Development Control Plan 2013 (LDCP2013) sets the planning controls relevant to this matter in relation to:
1. FSR.
2. Overshadowing and Setbacks.
3. Car parking.
4. Stormwater drainage.
5. View impacts.
Having considered the above parts of the DCP, the Council advised the Court that it was satisfied that the Amended DA plans are acceptable, and consent can be granted subject to conditions.
[7]
Contentions and Expert Evidence
There were objections lodged by residents of Waterview Street, Duncan Street, and Colgate Avenue. The residents' objections are submitted in Exh "2": Council's Bundle of Documents being contained in folios 139 to 187. I perused the objections and heard from 3 objectors who represented other objectors in their streets: Mr A Hall of Duncan Street; Mr B Stephenson of Waterview Street, and Ms S Mladenovic of Colgate Avenue. I considered the objections, and noted that the objections by the residents were also reflected in Council's Statement of Facts and Contentions - Exh "1".
Contention No. 1: Overshadowing of adjoining properties: "The proposed development results in significant overshadowing the private open space of the adjoining properties at Nos. 12, 14 and 16 Colgate Avenue, Balmain".
Contention No. 3: Setbacks: "The side setbacks of the proposed development result in streetscape and amenity impacts. The front setbacks of the proposed development is inconsistent with that of the streetscape".
Contention No. 4: The proposal exceeds the floor space ratio for 2B dwelling: "The proposed dwelling on 2B exceeds the floor space ratio within the LLEP 2013".
Mr J Pagan is the town planner for the Applicant, and Mr G Hugo represented the Council. The town planning experts considered the Amended DA, joint conferenced and prepared a Supplementary Joint Report - Planning filed 20 October 2020, which is Exh "8". The town planning experts addressed side setbacks, overshadowing, loss of privacy and conditions of consent - Exh 8 paragraph 1.3. The town planning experts agreed:
1. The Amended DA plans demonstrated that the side boundary setback of 2.0m at the first-floor level for the front part of the proposed dwelling 2A facing no. 16 Colgate Avenue complied with the numerical control C17 in LDCP2013.
2. The rear part of the proposed dwelling 2A is now entirely within the line of the side boundary setback graph control except for the topmost edge of the roof and gutter of the two dormer windows W12 and W13. Having regard to the relevant objectives of the control, the town planning experts agree that the Amended DA is consistent with the applicable objectives in relation to adequate separation from the adjoining buildings to ensure solar access, air circulation, acoustic privacy and, subject to appropriate screening, visual privacy; the desired future character and established pattern of development will be maintained; the proposed building is appropriately sited to protect neighbourhood features such as streetscape, private open space, solar access and views; and the proposed development reinforces desired future character, complements the siting, scale and form of adjoining development and provides a high level of residential amenity.
3. The extent of the variation of the side setback is limited and the development provides a greater than required setback in other parts of the development to offset any numeric non-compliances and therefore the rear part of proposed dwelling 2A as amended is acceptable on merit in relation to the side boundary setback control.
4. The backyard of 12 Colgate Avenue currently receives less than 2.5 hours mid-winter sun to 50% of its private open space, and therefore LDCP2013 Control C19 and Part C3.9 allows no additional shading. I accept the agreement of the town planning experts that the Amended DA will result in minor reductions of solar access to the yard of no. 12 Colgate Avenue between 10am and 2pm contrary to the control but because there is a tall dense hedge along the rear boundary of no. 12, in practical terms solar access will not be materially affected, and in accordance with the planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 it is appropriate to consider this area already overshadowed by the tall dense hedge.
5. The rear courtyard of no. 14 Colgate Avenue currently meets LDCP2013 C18 standard but that the proposal will reduce mid-winter solar access to 1.5 hours to half of its area, ie 1 hour less than the control requires. However, useful solar access will be maintained for 3.5 hours to useable areas of the courtyard, the impact of the Amended DA has been minimised through setbacks and design of the amended plans. The town planners agree that the degree of overshadowing and adequate sunlight that will be provided to 14 Colgate Avenue is acceptable on merit considering the objectives of the control.
6. The backyard of no. 16 Colgate Avenue currently receives less than 2.5 hours mid-winter sun to 50% of its area, and therefore LDCP2013 Control C19 of Part C3.9 allows no additional shading. The town planning experts agree that the proposal will result in relatively minor reductions of solar access to the yard of no. 16 but because useful solar access will be maintained until early afternoon, and the Amended DA has more than compliant side setbacks in the area casting the shadow, and minimises the degree of overshadowing as referenced within the objectives.
7. The residents of Duncan Lane objected to the development because of the impact of overshadowing, loss of sunlight and noise. The town planning experts agreed that the impact of overshadowing and loss of sunlight was minimal.
8. The Amended DA demonstrate that the proposal no longer exceeds the floor space ratio in relation to dwelling 2B (Contention no. 4).
Contention No. 2: Negative impacts on the values of the Waterview Heritage Conservation Area; inconsistent with streetscape, and inconsistent with the desired future character: "The proposed development has a detrimental impact to the heritage values of the Waterview Heritage Conservation Area (WHCA). The proposal is inconsistent with the streetscape, and the car parking is visually dominant and inconsistent with the desired future character of the locality." Exh F tab 5 Conjectural Plan of Waterview House Plan 2017/15/DA1.02 Rev G dated 06/10/19 reveals the underlying layout of "Waterview House".
Ms J Hill is the heritage expert for the Applicant, and Mr S Croft for the Council. Dr I Vetta is the archaeological heritage expert for the Applicant, and Ms K Strickland is the archaeological heritage expert for the Council. The heritage experts and archaeological heritage experts considered the Amended DA, conferred and filed a Supplementary Joint Expert Report - Heritage on 16 October 2020 which is Exh "10".
Several of the earlier recommendations of the heritage experts were addressed in the Amended DA. The remaining issues raised by the heritage experts have been addressed in Condition of Consent No. 2. Design Change (Annexure A) and in particular items (a) to (k):
1. vine covered screens to 1500mm in heights are to be provided on all boundaries within the front setback.
2. The ground floor levels of the garage doors of Dwelling 2A and Dwelling 2B are to be raised by 180mm and the height of the garage doors are to be raised by 200mm.
3. The ground floor level of the first-floor verandah of Dwelling 2B is to be lowered by 360mm.
4. The doorway entry in the façade of Dwelling 2B is to be amended to match the proportions of the doorway entry in the façade of Dwelling 2A.
5. The lean-to roof of Dwelling 2A is to align with lower beam of the front verandah of Dwelling 2A and the roof pitch is to be reduced accordingly.
6. The lean-to section of Dwelling 2A (north-eastern side) is to comprise horizontal boarding rather than vertical boarding.
7. Skylight R02 of Dwelling 2A is to be deleted. A new skylight R02 can be provided I the rear-facing roof plane of Dwelling 2A.
8. and (i) deal with the car stackers for both dwellings.
(j) deals with existing and future replacement of boundary fences.
(k) deals with privacy treatments to various windows.
I accept the evidence of both heritage experts that the Amended DA will have no unacceptable impacts on the character and significance of the Waterview Estate Heritage Conservation Area in terms of the heritage management provisions of cl 5.10 (4) of LLEP 2013.
Turning to the archaeological heritage of Waterview House, archaeological test excavation was undertaken by Archaeological Management and Consulting Group in October 2019 (under an approved S 139 Exception Notification as endorsed by Heritage NSW). Structural remains of c. 1830s Waterview House were exposed in both test trenches - a single sandstone foundation wall was identified in each test trench. These results have shown that high potential exists for below ground wall foundations of Waterview House to survive in situ. Joint Expert Report - Heritage Exh "4" page 5.
I accept the evidence of both archaeological heritage experts as detailed in Exh 4 and 10 that the Amended DA will have no greater impacts on the archaeological potential of the site in terms of the heritage management provision of cl 5.10 (4) of LLEP 2013 and in terms of the approved research design and excavation methodology endorsed by Heritage NSW under S140 Excavation permit S140/2020/007.
Contention No. 5: Car Parking: "The proposal includes car parking arrangements that are inconsistent with Council development controls. The submitted information has not provided Council with the required level of certainty that they will comply with the relevant standards".
The Amended DA addressed Contention no. 5 as they demonstrated sufficient swept paths to enter and exit the dwellings; the external lift was deleted and replaced with an internal lift, and met Council's standard requirements for driveway crossovers.
Mr K Eivazzadeh is the expert engineer for the applicant and Mr S Howie is the expert engineer for the Council. Mr Howie and Mr Eivazzadeh received the Amended DA, conferred and prepared a Supplementary Joint Expert Report - Engineering filed 21 October 2020 - Exh "9". The engineering experts agreed that the Amended DA met the requirements of LDCP2013 C36 and C37 being the car parking requirements; with the exception of dwelling 2A, and the applicant further agreed to an imposition of a condition of consent (Condition 2 h.) to delete the car stacker for dwelling 2A and replace it with an at-level garage with 1 car parking space.
I accept the evidence of the expert engineers that the Amended DA, and draft conditions of consent in Exh K meet the requirements of LDCP2013 C36 and C37; have demonstrated sufficient swept paths; have removed the external car stacker and has demonstrated that the design will meet the Australian Standard AS/NZS2890.1.1-2 - 4 Parking Facilities - Off-Street Car Parking and Council's standard requirements for driveway crossovers.
Contention No. 6: Drainage: "The Stormwater drawing are inconsistent and have not provided Council with sufficient certainty to satisfy the necessary requirements of LDCP2013 Part E (Water) to issue a consent". On 14 October 2020 new Stormwater Drainage Plans by Smart Structures Australia were filed by the Applicant and became Exh "D". The engineering experts conferred on the stormwater drainage issues and agreed that the issues raised in Contention no. 6 have been met by the Amended DA and draft Conditions of Consent in Exh K - (Joint Expert Report - Supplementary - Exh 9).
I accept the evidence of the engineers that the issues raised in Contention No. 6 have been met.
Contention No. 7: Trees: "The application has not provided root mapping to demonstrate that the proposed development will not have a detrimental impact on the trees located on the surrounding properties. Some of the proposed replacement trees are unsuitable.
Ms J Brown is the arborist for the Applicant, and Ms L Limberiou is the arborist for Council. The tree experts perused the DA, conferred and produce the Joint Expert Report - Trees filed on 13 October 2020 which is Exh "6".
In Contention no. 7 the particulars detailed in sub-paragraphs a & b addressed possible future damage to the trees on adjoining properties to the subject property upon replacement of existing boundary fences. The tree experts supported the planting of replacement trees at the rear of Dwelling 2A and 2B, and recommended a choice between Kurrajong, Black Wattle, Cheese Trees, Prickly Paperbark or Diamond Leaf Pittosporum. This contention has been addressed by the insertion of condition 2 j. in the draft Conditions of Consent Exh K - "Existing fencing to the sides and rear of the property is retained as existing or, alternatively if replaced, is to be replaced with like-for-like materials and using the existing footings/post holes around roots of trees in adjoining properties that are in proximity of those boundaries."
Contention No. 8: "The proposed development has not submitted an adequate view loss assessment to demonstrate that the view impacts are acceptable considering the planning principal within Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140.
The potential view loss related to the residents of Waterview Street and the public domain. The town planning experts, and the heritage experts, agreed that the impact of the development on the properties in Waterview Street, and in particular the potential loss public domain views, was minimal.
[8]
Public Interest Considerations
As stated above, the Council placed the DA on public notification for a period of 14 days between 30 April 2020 and 14 May 2020 (first notification).
The Council received a number of submissions in objection to the DA which raised, inter alia, issues on:
1. Non-compliance with planning controls.
2. Bulk and scale.
3. Streetscape.
4. Visual and acoustic privacy.
5. Overshadowing.
6. View loss.
7. Impacts on vegetation.
8. Increased traffic and pedestrian safety.
(the objectors).
Persons who authorised submissions in response to the Notification were given the opportunity to articulate their concerns in further written submissions, and a representative from each surrounding street: Waterview Street, Duncan Street and Colgate Avenue, addressed the Court at the commencement of the Conciliation Conference.
The Council also notified affected property owners and/or occupiers of the Amended DA in accordance with the Court Orders made on 14 October 2020. No further submissions were received in relation to the notification arising from the Amended DA.
I am satisfied that the issues raised by the objectors have been taken into consideration by the Council and by the experts. I have also considered the issues raised by the objectors.
[9]
Conclusion
I am satisfied that the Contentions have been addressed. In accordance with the request of the parties, I grant development consent to DA/2020/0286 subject to conditions of consent as attached as Annexure A.
[10]
Orders
The Court orders:
1. Leave was granted to rely upon the Amended Plans in Exhibits C, D and G on 14 October 2020.
2. The appeal is upheld.
3. Development consent is granted for Development Application number DA/2020/0286 for demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking on land identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain, in accordance with the condition included at Annexure 'A'.
4. The Exhibits, other than Exhibits B, C, D, F, G, K, 1, 8, 9 and 10, are returned.
[11]
Acting Commissioner of the Court
Annexure A (206521, pdf)
Architectural Plans (7866831, pdf)
Subdivision Plan (653486, pdf)
[12]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 December 2020