Conclusions
34Having carefully considered the disparate opinions responding to the contentions, the submissions and undertaken a view, I do not consider this application merits consent in its current form because it is of excessive bulk and scale in the prevailing context.
35In my assessment the threshold issue concerns the bulk and scale of the upper level extension, which the council submits is excessive. As a starting point, I accept that the lot is of unique L-shape and size in the immediate location. This additional size of the lot then enables the proposed extension to achieve comfortable numerical compliance with the FSR and other controls.
36However, it has often been stated by the Court that mere numerical compliance does not guarantee approval, particularly where other qualitative controls are required to be satisfied. That is the case in the subject matter because the raft of controls that apply to the site, also require the consent authority to be satisfied that there is reasonable compliance with the relevant objectives.
37In assessing the character of the area, I accept that the subject property presents as an integral part of the row of terraces and that these terraces include a variety of extensions at the ground level but there are no upper level rear extensions. It is also apparent to me from the view that the subject property appears to have a similar curtilage to its neighbours because of the continuation of the rear boundary line fences. Consequently, 'dog - leg' component appears to me as a separate lot.
38It also appears to me that there is a reasonable degree of openness and access in this rear yard area, which allows a range of viewing opportunities of the rear of this group of terraces and therefore any incremental changes should be carefully assessed.
39Because of this apparent 'detachment' within the subject lot, I think there is merit in considering the "effective area" proposition put by Ms Laidlaw, as this materially influences the actual visual character of this neighbourhood. On this basis, the FSR including the upper level extension would be approximately 1:1 according to Ms Laidlaw, which is double that envisaged by the DCP control.
40Contrary to this, I note that Ms Ashley calculates the FSR to be 0.76:1, but says that this is not a proper application because the controls do not distinguish this "effective area" proposition. Nevertheless, this would still exceed the 0.5:1 DCP control that should apply to neighbouring properties.
41However, as stated previously the qualitative controls must also be satisfied. In particular cl 13(2) of the LEP endeavours to protect and enhance the areas natural features, character and appearance. Also, cl 17 requires that new housing development comply with development standards to achieve an acceptable degree of compatibility with the pattern of surrounding buildings.
42In my assessment, the desired outcomes for these objectives would not be adequately achieved because the proposed rear extension, being the first such extension, would materially change the rear appearance of the group of terraces in a way that does not enhance the character of the area.
43The extent of the proposed upper level is dependent on the application of the BLZ control in Part B1.2 of the DCP. Whilst I agree with Ms Laidlaw that the terminology is ambiguous, nevertheless the wording of this part refers specifically to two storey development and first floor extensions. It then states, " in most circumstances development above the first floor may not occupy the entire area of the BLZ, due to bulk and scale issues ". I interpret this as the 'ground level' being the first level and the 'upper level' being the second level by reference to the two storey context.
44Consequently, the application of the controls on this basis does not envisage the 'second/upper' level occupying the entire area of the BLZ so that there is a scaling down effect from the original two storey terrace building to reduce the apparent bulk.
45Whilst there was some disagreement between the planners about the extent of the 'ground/first level' BLZ, I am satisfied to rely on the planners agreement that the extent of the work at this level represents a reasonable BLZ and is acceptable. However in the subject context, I think it then reasonable to apply the provisions of the DCP and require some setback of upper level, so that the apparent bulk and scale is reduced. In this regard, I am satisfied to rely on the opinion of Ms Laidlaw for a minimum 2.5m setback rather that that of Ms Ashley who supports no setback.
46Even though the DCP contains guidelines for variations of the BLZ, I do not consider the proposed variation is justified in the circumstances, primarily because of the resultant visual bulk impact of the non-complying element.
47In reaching this conclusion I have also considered the evidence presented regarding the possibility of the approval of this application creating an undesirable precedent in terms of the findings of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 where he said:
28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.
48I consider it reasonable to apply this line of authority in the subject matter because I think there is a strong possibility that the neighbouring terrace owners could follow with similar applications and the cumulative result would be contrary to the desired outcome for this area. The approval of the subject application at the effective end of the row would most likely establish the control point for the second level BLZ, which I consider excessive and not in accordance with the intent of the DCP control.
49Insofar as there was also disagreement about the impact of non-compliance with the side setback controls, I accept that in reality the main practical concern is along the more exposed eastern boundary. Accordingly, I accept Ms Laidlaw's opinion that some relief should be provided by a reduction in the length of the non-complying upper level.
50The remaining issue concerns the proposals compliance with the heritage/conservation area provisions. Notwithstanding that the extension is at the rear of the row of terraces, nevertheless as stated previously, I consider the proposed extension is of excessive bulk and scale, which does not "protect, conserve and enhance the character of this neighbourhood within the conservation area. I rely on the opinion of Ms Laidlaw in this regard that the proposal represents an undesirable incremental change.
51In summary then, I consider the proposal is of excessive bulk and scale to merit consent in its current form. However I note that the option of reducing the upper level extension by 2.5 - 3m was discussed during the hearing and whilst it does not totally satisfy the applicant's requirements, nevertheless the evidence indicates to me that this would represent a reasonable balance between the competing private and public interests.
52Accordingly the applicant is allowed three weeks until 29 July 2011 to consider these findings and advise the Council and the Court whether it wishes to make such minor amendments before final orders are made.
R Hussey
Commissioner of the Court
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Decision last updated: 11 July 2011