Penrose v Inner West Council

Land and Environment Court (NSW)|2019-11-26

Nature of the appeal and outcome

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).
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.
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.
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.

The site and locality

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.
The site is adjoined by single storey dwelling houses, with 109 Illawarra Street on the eastern side having a corner address.
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.
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)
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

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.
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.

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

Planning controls

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.
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.
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.
The subject site has a maximum height limit of 9.5m (cl 4.3 of LEP 2011). The proposed development complies with this standard.
The maximum floor space ratio (FSR) for the site is 0.9:1. The proposed development complies with this standard.
DCP 2011 applies to the proposed development. The relevant controls in DCP 2011 are at Part 4.1: Residential Development, Low Density Residential Development.
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."
The objectives of the streetscape provisions at 4.1.5 are: "O8 To ensure development in streetscapes with a visual cohesiveness and an identifiable uniformity in bulk, scale and height complements that uniformity. O9 To encourage contemporary design for new dwellings and infill development that complements or embellishes the character of an area."
None of the controls at 4.1.5 are directly relevant to the proposed development.
Further, DCP 2011 defines "streetscape" as follows: " …'The streetscape' is defined as: Street attributes being the combination of elements within a street which create the urban form of that street. It includes building forms and styles, landscaping, street furniture, street trees, pavements and fencing; and Properties adjoining and adjacent on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances it is appropriate to consider up to ten allotments on either side of the subject site. In effect, properties located in the immediate vicinity of the subject site form part of the streetscape context."
Clause 4.16.1: Floor Space Ratio (FSR) and Height of DCP 2011 states: "Objectives O10 To ensure development is of a scale and form that enhances the character and quality of streetscapes. O11 To ensure alterations and additions to residential period dwellings do not detract from the individual character and appearance of the dwelling being added to and the wider streetscape character. O12 To ensure development allows adequate provision to be made on site for infiltration of stormwater and deep soil tree planting, landscaping and areas of private open space for outdoor recreation. Controls: C7 Maximum permissible FSR and height for any development must be consistent with the height and FSR standards prescribed on the Height of Buildings (HOB) and FSR Maps of MLEP 2011. C8 Notwithstanding compliance with the numerical standards, applicants must demonstrate that the bulk and relative mass of development is acceptable for the street and adjoining dwellings in terms of: i. Overshadowing and privacy; ii. Streetscape (bulk and scale); iii. Building setbacks; iv. Parking and landscape requirements; v. Visual impact and impact on existing views (Council encourages view sharing between surrounding residences); vi. Any significant trees on site; and vii. Lot size, shape and topography"
Council argues that the proposed development does not comply with C8 in clause 4.16.1 above.
The controls relevant to building setbacks are detailed at clause 4.1.6.2 of DCP 2011. They state: "Objectives O13 To ensure adequate separation between buildings for visual and acoustic privacy, solar access and air circulation. O14 To integrate new development with the established setback character of the street and maintain established gardens, trees and vegetation networks. Controls: C10 Attached dwellings, dwelling houses and semi-detached dwellings i. Front setback must be: a. Consistent with the setback of adjoining development or the dominant setback found along the street; and b. On corner lots where there is a consistent secondary boundary setback to buildings on opposite street corners, reflected in the design of any proposal. ii. Side setback must be determined in accordance with the following table: iii. Rear setback must: a. Where a predominant first storey rear building line exists, is consistent and visible from the public domain, aim to maintain that upper rear building line; b. In all other cases, be considered on merit with the adverse impacts on the amenity of adjoining properties being the primary consideration along with ensuring adequate open space; and c. Where the prominent form of development is terrace housing with access to a rear lane, maintain the capacity for off-street parking."
Council argues that the proposed development does not comply with C10 in clause 4.16.2 above.
The development control plan provides specific controls to period dwellings at 4.1.11. These controls apply to: to individual properties neither defined as heritage items, nor located within heritage conservation areas, yet are intact examples of period buildings and worthy of conservation. It is accepted by the parties that these controls apply to the proposed development. The relevant sections of the controls are extracted below: "Objectives: O21 To retain or reinstate the front garden (and side garden where part of the front garden) of period buildings, including elements such as fences, gates, paths, carriageway, walls and plant beds. O22 To retain or reinstate the facade and main external body of the period building visible from the street, including proportions, materials, details and elements (such as front verandahs or barge boards), roof forms, materials, setbacks and number of storeys, chimneys and scale. O23 To retain exceptional rear building, garden and internal features relating to the period building. O24 To accommodate contemporary additions and alterations while retaining the significant components of the period building and garden. Controls: C57 Alterations and additions at the front should minimise impacts to the period dwelling. C58 Demolition of existing significant period features at the front will not be permitted. C59 Finishes other than those typical to the period building are not permitted at the front. Unfinished surfaces, such as face brick and stone must be retained. C60 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. C61 Rear additions to terraces must not alter the parapet, ridgeline, chimneys and profile of party walls projecting above the roof of the terrace, as perceived from the front streetscape. … C64 Where a proposal demonstrates a response to the desired future character of an area and it fits within the streetscape it may, in limited circumstances, depart from C57-C63"
Relevantly DCP 2011 provides additional controls in relation to roof details at 4.1.12.1. Control 65 states: "Alterations and additions to period housing must positively relate to the prevailing roof forms found in the locality and consider the design guidelines for the relevant period building. For existing housing, the materials used to cover the roof should complement the original cladding and terracotta tiles, and slate or corrugated iron should be used where appropriate."
The subject site is within the Henson Park Planning Precinct (Precinct 13, Chapter 9 of DCP 2011). The Council argues that the development is not in keeping with the desired future character of the area in that the proposal does not:

protect and preserve contributory and period buildings within the precinct and require their sympathetic alteration or restoration;
maintain distinctly single storey streetscapes that exist within the precinct; and
preserve the predominantly low density residential character of the precinct.

Evidence

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

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.
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.
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)
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."
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.
In contrast, it is Mr Newman's analysis and evidence that the upper floor addition, with its proposed cathedral ceilings, is 'not subordinate to the main body of the period dwelling as the ceiling height of the first floor is excessive being generally greater than the 3.1 metre ceiling height of the ground floor' (Exhibit 2). Mr Newman concludes that '…in order for the first floor [addition] to be suitable from a bulk perspective and in order not to dominate the period dwelling, the height of the first floor should be reduced by lowering (the) internal floor and ceiling heights' (Exhibit 2).
In regards to the visibility of the proposed addition from the street, Mr Newman's evidence is as follows: "The addition will be visible from the streetscape. A person standing on the opposite side of the street would be able to view the addition from many points in the street and I disagree that the addition could only be viewed from oblique angles. The aim is to achieve a first floor addition that is subordinate when viewed from the street. The aim is not to achieve a first floor that is entirely obscured from view, but rather an addition that complements the street by retaining key elements of the period building, is setback from the street and is of a scale that appears secondary to that of the main from body of the dwelling." (Exhibit 2)
It is the conclusion of Mr Newman's assessment that the proposed upper floor extension should commence behind the hip of the existing main roof. He argues that this would reduce the streetscape impacts and retain the period features of the house.
The planning experts agree that the proposed development seeks an FSR of 0.77:1 and that the maximum allowable FSR for the subject site is 0.9:1. They disagree whether the nomination of 0.9:1 indicates that the site is capable of achieving first-floor accommodation or whether the FRS of 0.9:1 is a control that is not necessarily achievable given the constraints of the site. The first being the position of Mr Threlfo and the second being the view of Mr Newman.
The proposed development seeks approval of a nil setback to the upper level on the eastern boundary, for a length of 4.05m. The existing ground floor of the existing dwelling has a zero setback on the eastern side at the same location for a length nominated on the architectural plans as 8.34m (Exhibit A).
Mr Threlfo argues that the proposed nil setback at the upper level causes no adverse visual impact to the adjoining property at 21 Thompson Street. In his opinion, this nil setback is justified as for the majority of its length the new wall abuts the neighbouring building, which also has a nil setback. Further, he argues that the proposed bathroom Window 06 is oriented to the rear, not the side boundary.
Mr Newman disagrees and argues that the nil setback of the proposed bathroom is unacceptable and that the fact that it is proposed to extend 1.3m beyond the rear building line of 21 Thompson Street will generate adverse visual impacts for the adjoining neighbour. The impact is described by Mr Newman: 'This element of the proposed development will present a solid 2 storey wall for 1.3 metres directly to the rear of the neighbouring dwelling and their area of principal private open space' (Exhibit 2). It is the conclusion of Mr Newman's evidence that the bathroom should be setback 1.23m from the side boundary, consistent with the line of the remaining addition. He concludes that the subject site has sufficient width that is capable of achieving a setback to the eastern boundary.
Both experts agree that the update shadow diagrams, corrected to be true north, "confirm that the proposal maintains a minimum of two hours direct solar access to the habitable spaces of the neighbouring dwellings throughput winter solstice, in accordance with the requirements of control 2.7 of the MDCP 2011." (Exhibit 2)

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

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)
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.
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.
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)
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).
Mr Newman argues that if a first-floor addition is pursued, it should commence behind the primary roof form to enable the retention of the side planes of the roof, thus enabling its form to remain visible from the street.
Finally, Mr Newman disagrees with the analysis of streetscape undertaken by Mr Threlfo and argues that: "6 of the 9 properties that have primary frontage to Thompson Street are single storey dwelling houses with intact period roof forms. An additional property, 8 Thompson Street is two storeys to the rear and maintains the primary roof form in its entirety. The two properties directly opposite the site which present a side boundary to Thompson Street are single storey with intact period roof form" (Exhibit 2)
Mr Newman concludes that 'the streetscape predominately consists of single storey dwelling houses with intact period features and in particular roof forms' (Exhibit 2).
Concerning the proposed development and its relationship to the existing streetscape, it is Mr Newman's evidence that "the adoption of design elements such as roof pitch and window proportions that match the original dwelling can be positive in translating positive streetscape characteristics. But this does not negate the need for an addition to be subordinate and retain period features" (Exhibit 2)
Mr Newman is not supportive of the mix of materials proposed by the development and argues that they detract from the period dwelling. It is his evidence that the addition should utilise a distinctive set of materials to that of the existing building.
Both experts concluded that a lighter roof colour should be considered. This requirement is incorporated in the conditions at Annexure A.

Overlooking and visual or acoustic privacy impacts to the adjoining neighbours

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.

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.
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.
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

At the proceedings, Mr Bonanno maintained that, on the evidence of Mr Newman, the proposed development ought to be refused.
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.
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.
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.
On the preceding grounds, Mr Bonanno argues the development should be refused by the Court.
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;
section 4.15(3A) of the EPA Act provides that the DCPs are to be given less weight than LEPs, and non-compliance with a provision of a DCP should not of itself be a reason for refusing an otherwise compliant development. The consent authority must be flexible in applying the DCP, and consider alternative solutions which generally achieve the objects of the DCP;
in this regard, the proposed development easily complies with the development standards prescribed in Part 4 of the LEP 2011 including: ○ 4.3: Height of Buildings - the maximum permissible is 9.5m. The maximum proposed is 8.5m which is the rumpus room which is set back behind the front room of 8.1m; ○ 4.4: Floor Space Ratio - the maximum permissible is 0.9:1. The ratio for the proposal is 0.77:1. The Applicants are not seeking to maximise the development yield, but rather to accommodate a family of five. This can be achieved whilst comfortably complying with the principal development standards of floor space ration and height;
the rear roof plane of the original primary roof is not visible from the street, the side roof planes behind the rear peak of the ridge are only visible from the street from oblique angles, and are not significant components of the period building. The impact on the main dwelling is minimal;
the addition is subordinate to the main body of the period building when viewed from the street - the site is elevated and the addition cannot be seen from the front footpath; it is set back 8.5m from the front boundary; the height of the front bedroom is 8.1m compared to a maximum permitted building height of 9.5m, and the side walls of the front bedroom are 2.56m compared to the 4m side walls of the original house; and
there is no justification for a side setback to the upstairs bedroom as it abuts the neighbouring property which also has a nil side setback. The bathroom overlooks the roof of the neighbouring property, with the exception of a lm extension past their roofline which would have a minimal impact given the size and width of the block and the fact it cannot be seen from inside the house. (Applicant's written submissions 26.11.19 pp. 7-8)

Mr Penrose also submits that the Court's planning principle detailed in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [86] -[93] is relevant to the application on the basis that the controls in DCP 2011 have not been applied consistently by the Council and therefore should be given less weight on that basis.
Further, he argues that the decision of Veloshin v Randwick Council [2007] NSWLEC 428 at [32]-[33] (Veloshin v Randwick Council) is relevant to the proceedings as, in Mr Penrose's submission, the Court "noted that height and bulk are highly subjective terms, and can only be meaningful against the background of local planning controls, such as maximum height and floor space ratio." (Applicant's written submissions 26.11.19 p. 6)

Findings

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.
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]).
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.
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.
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?"
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.
I accept the evidence of the planning experts that Window 09, in its current form, is of a size and location that will have an actual and a perceived privacy impact to 109 Illawarra Road. However, I am satisfied that such an impact is capable of being resolved through a modification of the application through the imposition of a condition of consent (s 4.17(1)(g) of the EPA Act). That condition is as follows: "4A: the approved development is modified as follows: Window 09 is to be reduced in size to a width no greater than 1800 with a sill height of 900 (consistent with 01, 02 and 05). Prior to the release of the Construction Certificate the PCA is to be satisfied that the privacy screen mounted externally to Window 09 is angled to obscure overlooking to the rear yard of 109 Illawarra Road. The details of the updated windows are to detailed in the Construction Certificate drawings"
I am satisfied this condition will appropriately mitigate and adverse privacy impacts arising.
I am satisfied that Door 09, being located off a secondary bedroom, does not generate a significant adverse impact to the adjoining properties. My reasoning is that it is a room that has a lower utilisation, any view is likely to be in passing and of low duration and that any view would be at an oblique angle. However, I accept that the depth of the proposed hood is material to its effectiveness. As such, it is appropriate that the design of the hood is further detailed in the Construction Certificate drawings. The following condition is to be imposed on the consent to ensure its effectiveness: "4B Privacy Hood - Door 09 Prior to the release of the Construction Certificate the PCA is to be satisfied, by architectural details in the Construction Certificate drawing, that a line of sight from Door 09 to the rear yards of both 109 Illawarra Road and 21 Thompson Street is obscured by the door hood."
Further, concerning Window 06 I accept the evidence of Mr Newman that it is appropriate to require the glazed surface of the window to be frosted. I am not persuaded that once so glazed that it would create a privacy impact on 21 Thompson Street that would warrant its deletion. Window 06 is of moderate size, is oriented to the rear boundary and at best any view would be at an oblique angle. To achieve the frosting of Window 06, the following condition is to be imposed on the consent: "4C: the approved development is modified as follows: Window 06 is to be finished with obscure glazing. The details of the updated windows are to detailed in the Construction Certificate drawings"
On the Respondent's submissions, the final physical impact on surrounding development arising from the proposal is the nil boundary setback for the upper floor bathroom. DCP 2011 at clause 4.1.6.2 notes that for sites where the width of the property is less than 8m the required setback is 'at Council's discretion' (refer to [25]). On this basis, the proposed development does not seek a variation to the controls.
In considering the evidence of Mr Newman, I note that the adjoining property (21 Thompson Street) has a nil setback for the length of its ground floor construction. Further, the existing dwelling on the subject site has a nil setback for a length of 8.34m at the ground floor. In the context of these site specific characteristics, I accept the evidence of Mr Threlfo that the proposed nil setback at the upper floor is acceptable.
I note Mr Newman's oral evidence that the visual impact of the façade modulation that arises from the nil setback is detrimental to the streetscape of Thompson Street. However, I am not persuaded by this evidence given the setback of this modulation is some 12m from the front boundary, and given the narrowness of the view line from Thompson Street to it, I am satisfied it would unlikely be perceptible. Further, on the basis of the site view I am not persuaded that the visual impact of the boundary wall in the rear yard of the adjoining neighbour at 21 Thompson Street is material.
Given the preceding discussion, I am satisfied that the potential for adverse acoustic and visual privacy impacts to adjoining neighbours arising from the proposed development have been ameliorated or can be ameliorated by the conditions of the approval.
I find that the answer to the first question of compatibility, namely: Are the proposal's physical impacts on surrounding development acceptable, is yes.
In relation to the question of whether the proposal's appearance is in harmony with the buildings around it and the character of the street, I accept the evidence of Mr Threlfo that:

The proposed extension will not be visible to a person standing on the footpath in front of the site. The elevation of the existing dwelling and the configuration of the front garden and footpath mean that a view of the upper storey will be obscured by the leading edge of the existing verandah roof. This conclusion concurs with the diagrammatic representation included in the architectural drawings (Exhibit A).
Further, 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.

Visibility is not an impact and needs to be assessed in the context of the streetscape and the planning controls that apply to the subject site. At clause 4.1.5 of DCP 2011, the policy notes that the type of development that is appropriate on a subject site will depend on the uniformity or otherwise of the existing building types and heights. As noted in [10], I am satisfied that the existing context of Thompson Street is varied in both in building type, form, scale and architectural style. I am satisfied the objectives of the streetscape controls at clause 4.1.5 of DCP 2011 are met by the proposed development.
As noted in the decision of Project Venture Developments v Pittwater Council, the experience of streetscape is an ambulatory one. On the evidence, I am satisfied that the view to the upper-level addition from across the street will be one of a well setback addition that is simple in form and congruent with the existing building. I am satisfied that the changes to the main roof form will be perceivable only to the observant at an oblique angle. I find that the proposal's appearance is in harmony with the buildings around it and the character of the street.
Further, I am not persuaded by the arguments of the Council that the proposed development does not meet the development standards at clause 4.16.1 of DCP 2011 (refer to [24]). On the evidence, I am satisfied that neither of the sub clause attributes are breached by the proposed development.
Finally, Council argues that that the loss of period fabric proposed by the development will result in an adverse impact sufficient to warrant refusal of the development. I do not prefer Mr Thompson's evidence in this regard. I am not persuaded that the rear of the front hip roof is a significant period feature that is of such moment as to require its retention. In considering Mr Thompson's evidence, I have given weight to the hierarchy of controls contained within LEP 2011 and DCP 2011. The subject site is not a heritage item, a contributory building, nor located within a heritage conservation area. This hierarchy of controls needs to be given weight in the consideration of the acceptability of the demolition proposed. Having done so, I am satisfied it is acceptable.
I accept the evidence of Mr Threlfo that the retention of the front chimney, front garden, timber picket fence, main roof form, verandah and gable is sufficient to meet the controls at 4.1.11 of DCP 2011, namely: "Alterations and additions at the front should minimise impacts to the period dwelling"; and "Alterations and additions at the rear and sides and above the roof line… must be subordinate to the main body of the period building when viewed from the street".

Orders

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

(2004) 136 LGERA 254

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