Penrose v Inner West Council

Nature of the appeal and outcome

1. COMMISSIONER: The Applicants lodged Development Application No. DA20190054 with Inner West Council on 19 February 2019. The Applicants seek consent to demolish part of the existing dwelling and carry out ground and first floor additions to the dwelling house. The works are proposed at 23 Thompson Street, Marrickville. The Council refused consent on 15 April 2019. The Applicants are appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
2. The appeal was subject to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act and the proceedings dealt with as a hearing.
3. The Council maintains that the development application should be refused for the following reasons: 1. The development presents a bulk and scale that is excessive in terms of the surrounding street context, and provides insufficient setbacks to adjoining properties; 2. The proposed building form and design, as well as the location of the first floor addition, do not complement or enhance the existing streetscape. Further, the proposed development will result in an unacceptable loss of period features of the existing dwelling; and 3. The proposed upper floor addition will result in adverse overlooking and visual and acoustic privacy impacts to the adjoining neighbours.
4. Following consideration of the evidence presented and the submissions of the parties, I have determined that the development application warrants approval on the following broad grounds: 1. I am satisfied on the evidence that the bulk and scale of the proposed development is compatible with the streetscape and its surrounds and that the loss of fabric will not result in an adverse impact sufficient to warrant refusal of the development. 2. That the potential for adverse acoustic and visual privacy impacts to adjoining neighbours have been ameliorated or are able to be ameliorated by conditions of the approval.
5. My reasoning for these findings is detailed in the following judgment. As a result of the above, the appeal is upheld and the development application approved subject to the conditions in Annexure A.

The site and locality

1. The subject site is known as 23 Thompson Street, Marrickville (Lot 3 DP 101200) and is located on the northern side of the road between Illawarra Road and Gorman Street. The site is approximately 247m² in area with a frontage of 7.315m.
2. The site is adjoined by single storey dwelling houses, with 109 Illawarra Street on the eastern side having a corner address.
3. The site contains a single storey dwelling which is not listed as a heritage item and does not form part of a heritage conservation area. The house dates from the early 1900's and is of face brick construction. The roof form of the existing dwelling comprises a hip roof, the front of which is tiled. The rear of the hip roof is, a small metal roof section and a longer skillion roof over the rear wing.
4. The parties disagree on the appropriate characterisation of the surrounding streetscape. Council asserts that: "The surrounding streetscape consists mainly of single storey dwelling houses, with the exception of 17 Thompson Street which contains a residential flat building as a result of warehouse conversion. The site is adjoined by 21 Thompson Street which contains a single storey dwelling house and 109 Illawarra Road which contains a single storey dwelling house." (Exhibit 1)
5. On the basis of the site view, and the inventory of buildings in Thompson Street detailed in the report of the planning experts, I am persuaded that the following description of the locality provided by the Applicants is to be preferred. "There is no predominant building style for the surrounding streetscape, with a mix of one to three storey dwellings and industrial buildings. 17 Thompson is a three storey residential flat building. 13 Thompson Street is a two storey warehouse. A six storey residential flat building has been approved at the eastern end of Thompson Street includes a modern second storey addition. 2 Thompson Street comprises a 2 storey residential dwelling. Only 5 of the 10 building that front Thompson St can be described as a single storey dwelling house." (Exhibit B)

Public submissions

1. In accordance with the provisions of Marrickville Development Control Plan 2011 (DCP 2011), the development application was notified to adjoining and nearby properties. Three submissions were received by the Council.
2. The objections to the application can be summarised as:

• impacts to the visual and acoustic privacy to the adjoining property as a result of the new first floor windows;
• overshadowing of adjoining neighbours and concern that the shadow diagrams are inaccurate;
• concerns that the proposed development is excessive in height, bulk and scale;
• that the building setbacks are inadequate;
• access during construction to 109 Illawarra Road; and
• inaccuracies in some of the development application documents and the Statement of Environmental Effects.

1. The preceding issues were reiterated in the onsite evidence provided by members of the public at the commencement of the hearing.

Planning controls

1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The development is accompanied by BASIX certification (A312121_02) in compliance with the instrument.
2. Pursuant with the provisions of the Marrickville Local Environmental Plan 2011 (LEP 2011), the site is zoned R2 Low Density Residential. The proposed development, being alterations to a residential dwelling, is permissible with consent.
3. Pursuant to cl 2.2(2) of LEP 2011, the consent authority must have regard to the objectives of the zone when determining a development application. The Respondent argues that the zone objectives are relevant to this application: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for multi dwelling housing and residential flat buildings but only as part of the conversion of existing industrial and warehouse buildings. • To provide for office premises but only as part of the conversion of existing industrial and warehouse buildings or in existing buildings designed and constructed for commercial purposes. • To provide for retail premises in existing buildings designed and constructed for commercial purposes.
4. The subject site has a maximum height limit of 9.5m (cl 4.3 of LEP 2011). The proposed development complies with this standard.
5. The maximum floor space ratio (FSR) for the site is 0.9:1. The proposed development complies with this standard.
6. DCP 2011 applies to the proposed development. The relevant controls in DCP 2011 are at Part 4.1: Residential Development, Low Density Residential Development.
7. At clause 4.1.5 Streetscape and design, DCP 2011 notes: "One of the most significant impacts on the streetscape appearance of areas of low rise development are proposals to carry out first floor additions to existing single storey houses or new development containing two or more storeys. Careful design investigation must ensure any upper level additions or new development does not conflict with the inherent scale of existing period houses and the wider appearance of the street. The proximity, scale and form of adjacent houses can be a major determinant of what is acceptable in a particular street. The type and nature of development that may be permitted will depend on: 1. Whether the streetscape is uniform or has a variety of building types and heights; 2. Whether the dwelling forms part of a row of terraces to look as one building; 3. The architectural style of the adjoining dwellings (especially those forming part of a consistent group of terraces or row houses); and 4. The specific site conditions affecting neighbours' concerns in relation to overlooking, overshadowing and visual impact that might conflict with residential amenity."

Evidence

1. In preparation for the hearing, Mr Newman and Mr Threlfo, respectively the Applicant's and the Council's planning experts met and joint conferenced on the proposed development application. I have summarised their evidence in response to the Council's contentions in the following.

The bulk, scale and setback of the proposed development

1. Mr Threlfo argues that the Council's concerns about the bulk and scale of the proposed development, expressed in the contentions, are not consistent with the planning controls detailed in LEP 2011 and DCP 2011. Further, Mr Threlfo argues that 'Proper application of the controls cannot result in a predetermined requirement that additions need to be behind the primary roof form' (Exhibit 2). Rather, he argues that the impact of the proposed development, when viewed from the public street, is the primary consideration in the merit assessment of the application.
2. In response to Council's assertion that the floor to ceiling height is excessive, Mr Threlfo notes that the design of the extension incorporates cathedral ceilings and that therefore the maximum height occurs only along the line of the middle of the proposed rooms. Further, he notes that the proposed development is compliant (by over a metre) with the maximum building height control in LEP 2011 of 9.5m. Mr Threlfo assesses that, in the context of the streetscape and the relevant planning controls, the bulk and scale of the proposed development is acceptable.
3. In terms of the visibility of the proposed development in the streetscape, Mr Threlfo's evidence is as follows: "The first floor addition will not be visible to a person standing on the footpath in front of the site. There is an established street tree in front of the site which blocks the direct front view to the addition from the footpath on the opposite side of the street. The addition will only be visible to a person standing on the opposite side of the street on the oblique angles. Given the side wall height of the addition is 2.56m over a ground floor wall of 4m, I am of the opinion that the addition is subordinate to the main body of the period dwelling." (Exhibit 2)
4. Mr Threlfo supports his emphasis on the visibility of the development from the street by reference to Control 60 at 4.1.11 of DCP 2011 which states: "Alterations and additions at the rear and the sides and above the roof line, other than reconstruction of elements removed from the period building and garden, must be subordinate to the main body of the period building when viewed from the street."
5. In conclusion, it is Mr Threlfo's evidence that 'the existing dwelling does not have any particular or unique character that justifies a requirement for the first floor addition not to be visible from the street' (Exhibit 2) and that the proposed development makes an acceptable change to the existing streetscape.

Compatibility with the existing streetscape, and the impact of the development on existing period features

1. Mr Threlfo's evidence is that 'the proposed addition makes a modest but acceptable change to the streetscape and will not result in the loss of significant period elements or features' (Exhibit 2). Further, he argues: "The proposed addition adopts the gable roof form of the original building, provides timber framed and vertically proportioned windows, with matching bricks for each side wall, in order to complement the original dwelling. No significant components of the original dwelling are to be demolished. Specifically, the façade and the main external body of the original building visible from the street is retained. Specifically, the front chimney, front garden, timber picket fence, main roof form, veranda and gable are to be retained so as to maintain its street character." (Exhibit 2)
2. Mr Threlfo argues that the proposed loss of original roof form is limited to 'the rear plane of the primary hipped roof, and segments of each side plane behind the rear peak of the ridgeline' (Exhibit 2). He concludes this approach is consistent with objective 22 and 24 of Part 4.1: Period Dwellings of DCP 2011 (refer to [28]) which both acknowledge changes to the period dwelling are anticipated.
3. It is Mr Threlfo's evidence is that there is no visually cohesive or uniform streetscape in the vicinity of the subject site and that DCP 2011 acknowledges and encourages the use of contemporary additions and materials that complement rather than copy period details. It is his evidence that the proposed first-floor addition is consistent with the DCP provisions.
4. In the alternative, Mr Newman argues that the proposed development will result in the loss of significant period features. In his evidence, Mr Newman focusses on the loss of the front hip roof fabric which will result from the proposed alterations and additions. He states: "The original front roof form is a significant period feature which is highly visible from the street. The front and side roof planes are visible along with most ridgelines. The addition would result in the demolition of the rear roof plane, part of the side roof planes and the rear ridgelines, all elements that form part of significant period features." (Exhibit 2)
5. Mr Newman concludes that the original roof form is a significant period feature and that under the provisions of Part 4.1.11 of DCP 2011, in particular, control 58, 'such features are protected' (Exhibit 2).

Overlooking and visual or acoustic privacy impacts to the adjoining neighbours

1. The contentions in relation to the potential amenity impacts arising from the proposed development centre on:

• Window 09 and its relationship to 109 Illawarra Road;
• Door 09 and its relationship to 21 Thompson Street and arguably 109 Illawarra Road; and
• Window 06 and its relationship to 21 Thompson Street.

1. The planning experts note that Window 09 is proposed to include an external privacy screen to ameliorate the potential for overlooking to the adjoining property. It is Mr Threlfo's evidence that the screen requires a greater density to ensure that overlooking is prevented. Mr Newman argues that the size and orientation of the window, when viewed from the rear yard of 109 Illawarra Road, create both an actual and perceived impact of overlooking. It is his evidence that the size of Window 09 should be reduced to ameliorate this impact.
2. Proposed Door 09 is located on the first floor, off a secondary bedroom. Mr Threlfo argues that the design of the 'folded aluminium hood' over the head of the doors seeks to provide privacy screening. In combination with the existing boundary planting, he argues that the 'Portion of the rear yard that would otherwise be visible but for the folded hood and vegetation is insignificant (Exhibit 2)'. Mr Newman's evidence is that there is insufficient detail of the design of the hood element to confirm that it is sufficient to obscure views to neighbouring rear yards.
3. On the final matter of Window 06, Mr Threlfo notes that the plans indicate that the bottom half of the window is to be frosted. He is satisfied that this addresses any privacy concerns of the neighbour at 21 Thompson Street. Mr Newman's primary position is that Window 06 should be deleted as the bathroom is also provided with Window 05. Alternatively, his evidence is that the whole of the glass of Window 06 should be frosted to mitigate the privacy/overlooking potential to the adjoining neighbours.

Submissions

1. At the proceedings, Mr Bonanno maintained that, on the evidence of Mr Newman, the proposed development ought to be refused.
2. Mr Bonanno submits that the Applicants have approached the redevelopment of the site on the basis that the existing dwelling has no defining or unique feature that requires the addition to not be visible from the street. It is Mr Bonanno's submission that this underscores the difference between the parties.
3. Mr Bonanno argues that on the basis of the site view, and the evidence of Mr Newman, the Court would be persuaded that the proposed first-floor addition will be visible in the streetscape and is not subordinate to the existing dwelling. Both of these findings, on Mr Newman's evidence, result in a detrimental impact on the streetscape and warrants the refusal of the application.
4. Further, Mr Bonanno argues that the amenity impacts raised by the neighbours, and analysed by the planning experts, demonstrate that the proposed development fails to manage the external detrimental impacts that arise from it.
5. On the preceding grounds, Mr Bonanno argues the development should be refused by the Court.
6. In the alternative, Mr Penrose argues that the proposed development warrants approval. His submissions can be summarised as follows:

• the proposed addition adopts the gable roof form of the original building, provides matching timber-framed and vertically proportioned windows, with matching brick for each side wall, to complement the original dwelling;
• no significant components of the original dwelling are to be demolished. The facade and main external body of the original building visible from the street are retained. Specifically, the front chimney, front garden, timber picket fence, main roof form, veranda and gable are to be retained so to maintain its street character;
• there is no uniform and visually cohesive streetscape. The single-storey houses are mixed with warehouse buildings and are of varied elevations;
• the recent approval of the 3-storey residential building at 17 Thompson Street, and the approved high rise residential tower heights at the end of Thompson Street as part of the Victoria Road precinct (ranging from 3 to 14 storeys, with a 6-storey residential building height approved for the end of Thompson Street) shows the desired future character of the area is one of increased density;

Findings

1. The Respondent argues that the application should be refused based on the detrimental impacts on the streetscape of Thompson Street arising from its bulk, scale and setbacks and further, the adverse impacts arising for the adjoining residents. I am not persuaded by these arguments advanced by the Respondent and I am satisfied on the basis of the evidence before me that it is appropriate to grant consent to the proposal. My reasoning follows.
2. Based on my observations on the site view, and the inventory of buildings in Thompson Street detailed in the report of the planning experts, I am persuaded that the description of the locality provided by the Applicants is to be preferred (refer to [10]).
3. Further, I accept the submission of Mr Penrose that the Court's decision in Veloshin v Randwick Council is relevant to the proceedings. The proposed development is compliant with the LEP development standards that seek to control the bulk and height of the proposed development. These controls give context to the assessment of the acceptability of the building proposed form.
4. Applying this context to an assessment of the compatibility of the proposed development, I am satisfied on the evidence that the bulk and scale of the proposed development is compatible with the streetscape and its surrounds.
5. In reaching this conclusion, I have applied the principles established in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture Developments v Pittwater Council), at [24] namely: "In order to test whether a proposal is compatible with its context, two questions should be asked. - Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. - Is the proposal's appearance in harmony with the buildings around it and the character of the street?"
6. The Respondent argues that the proposed development has adverse privacy and visual bulk impacts on the adjoining properties, 109 Illawarra Road and 21 Thompson Street. As part of the onsite component of the hearing, the Court was provided access to the adjoining properties and heard from the affected residents of their concerns arising from the proposed development. I have given these submissions weight in considering the acceptability of impacts.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application D201900054 for demolition and ground and first floor additions to the dwelling house at 23 Thompson Street, Marrickville (Lot 3 DP 101200) subject to the conditions in Annexure A. 3. The Exhibits are returned with the exception of Exhibits 1, A and B. ……………. D M Dickson Commissioner of the Court Annexure A

Amendments 22 January 2020 - Amendment to date of orders 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: 22 January 2020