Planit Consulting v Leichhardt Council

Applicant: LEGAL REPRESENTATIVES: Mr M Baird, barrister Respondent: Ms J Walsh, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10885 of 2007 Planit Consulting Pty Ltd v Leichhardt Municipal Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Leichhardt Municipal council (the council) of a development application to demolish most of the existing structures on, and remediate the contaminated areas of lots A and B DP 395221 and Part lots 3 and 4 DP 456207, known as 1-5 Tilba Avenue, Balmain.

The site 2 The site is on the western side of Tilba Avenue. Its eastern side adjoins Iron Cove. It comprises four allotments, lots A and B DP 395221 and Part lots 3 and 4 DP 456207. Lot A is 7.5m wide and has an area of 462m2; lot B is 10.8m wide and has an area of 645m2; lot 3 has a width of 7.4m and an area of 405m2; and lot 4 has a width of 4m and an area of 202m2. The total width of the four allotments is about 30m, while the total area is 1,820m2. 3 The existing house spans across the four allotments, almost side boundary to side boundary. It is the result of an extension of a pair of semi-detached houses on lots A and B. The extension fills in the site from the wall of the original semi (which was set back 2-3m from the southern boundary to the southern boundary of lot 4. As a result the house allows no views from Tilba Avenue to the Harbour. 4 The site falls from the road to the rear to Iron Cove about 9m. The ground level of the existing dwelling is about 3m below the road level. Adjoining to the north is 1A Tilba Avenue, a free-standing two-storey house with a garage facing Tilba Avenue on a site with a width of about 15m. To the south is 7 Tilba Avenue, containing a house on an allotment of about 20m-width. South of that property is 9 Tilba Avenue on an allotment of about 6-7m. (These dimensions were judged by eye on the locality map.) There are heritage items nearby at 8 and 18 White Street. The site is within a heritage conservation area.

The proposal and its history 5 The applicant proposes to demolish the existing buildings, swimming pool and tennis court on the site, leaving only some retaining walls and steps. The applicant also proposes to remediate those parts of the site that are contaminated. 6 The applicant lodged the application in February 2007. Following notification, the council received twelve objections. The council referred the application to NSW Maritime and received General Terms of Approval. The Foreshores and Waterways Planning and Development Advisory Committee considered the application in November 2007 and raised no objection. The applicant lodged the appeal against deemed refusal in September 2007. 7 In late December 2007 the applicant lodged a development application for re-subdivision proposing readjustment of lot boundaries to produce four allotments of equal width. The subdivision application does not include a proposal for building on the four allotments, nor one for building envelopes. The council has not yet assessed the application.

Relevant planning instruments and policies 8 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 relevantly requires that the impact on views from the water should be taken into account in assessing any development visible from the Harbour. As noted above, the Foreshores and Waterways Planning and Development Advisory Committee raised no objection to the proposal. 9 Leichhardt Local Environmental Plan 2000 requires development consent for demolition. It lists 8 and 18 White Street as heritage items and establishes the area in which the site is located as a Heritage Conservation Area. Clauses 15, 16(7) and 16(8) relate to development within a conservation area and in the vicinity of heritage items. The gist of these clauses is that the impact on heritage or conservation significance of any development must be taken into account before granting consent. 10 Leichhardt Development Control Plan 2000 (DCP 2000) contains development controls for residential proposals. These controls would apply to a redevelopment of the subject site. 11 A draft Amendment to DCP 2000 was exhibited from 18 December 2007 to 15 January 2008. The relevant amendment states: Council will generally require a development application for demolition of all, or a substantial part of, residential buildings on a site to include an application for the replacement buildings on the site. 12 The principle underlying the above requirement is: Only allow demolition of existing residential buildings where the replacement buildings are capable of satisfying the suite of controls for residential development in Leichhardt LEP 2000 and this Development Control Plan.

The issues 13 The council's Statement of Contentions raises six matters. However, by the time the case came to a hearing, only one issue remained, namely whether the demolition application should be accompanied by, or be part of, an application for the replacement building. It was common ground that the demolition and remediation proposal, in itself, had no adverse impact. The council contended, that demolition should not be allowed until the applicant has committed itself to the replacement building(s) of the house to be demolished. The council based its contention on s5(a)(ii) of the Environmental Planning and Assessment Act 1979, which requires the promotion and coordination of the orderly and economic use and development of land. The council further contends that the requirement for a development application for the future redevelopment of the site is also justified by s79C(e), which requires the public interest to be taken into account in the assessment of applications.

The objectors' evidence 14 The Court heard the evidence of four objectors. Mr W Ure, who lives at 1A Tilba Avenue, to the north of the site, said that he was concerned about the noise of construction and would like work to cease before 6pm. The applicant offered to cease work at 4pm; however, the council did not support the change in working hours that are usually applied in Leichhardt. Consequently the hours of construction in the conditions remain between 7am and 6pm. 15 Mr R Gleeson, who lives at 20 White Street, was concerned about the impact of drilling into rock on the site. I am assured by both parties that, to the extent that there is any drilling as part of the demolition, sufficient protection is provided by the relevant conditions of consent. Mr J Connelly, who lives at 18 White Street, supported Mr Gleeson's concerns. 16 Mr G Cook, who lives at 2 Tilba Avenue, opposite the site, was concerned about the proposal's impact on water views from his property. He said that before the existing house was extended in the early 1980s, his property could see the water through the gaps in development. He wants those views restored. Mr Cook also spoke for his neighbour Mr P Orlay at 8 White Street, who was away. Mr Orlay's concerns were also with views. I do not think that I can take view impact into account in the assessment of a demolition application, given that demolition will result in greatly increased (though only temporarily increased) views.

The expert evidence 17 On the second hearing day the applicant said that it would accept a condition requiring the amalgamation lots 3 and 4. This announcement affected the experts' evidence, since the demolition of the existing structures on the site would now result in three allotments rather than four, the narrowest of which is 7.5m-wide. 18 The experts were Mr R Howard, a conservation consultant retained by the applicant; Mr R Smith, a town planner retained by the applicant; Ms D Laidlaw, a town planner retained by the council; and Mr B McDonald, an architect, planner and heritage consultant retained by the council. 19 The experts agreed that there are no adverse impacts arising out of the proposed demolition and remediation. Mr Smith agreed that a building envelope plan would be appropriate with the development application for subdivision plan, but not required for demolition. He conceded that the development application for re-subdivision that is now with the council is therefore inadequate. In his opinion, if the site were developed as three separate allotments, the result could be satisfactory and in character with the area. The total width of 30m can easily accommodate three double garages without the need to resort to common garaging. 20 Ms Laidlaw thought that the amalgamation of two of the four sites was not enough; in her opinion the demolition application should include an application for the proposed redevelopment of the site. A single designer should design the redevelopment as one integrated proposal. Redevelopment of the site as three separate allotments would be inferior, partly from the design point of view and partly because an integrated proposal could deal with the vehicular access so as to avoid too many vehicular crossings. Mr McDonald was more equivocal. He thought that development of the site as three separate allotments may be acceptable, however, he preferred the site to be consolidated into two allotments. His written evidence demonstrated that historically there was a sizable gap between the house on lots 3 and 4 and the pair of semidetached dwellings on lots A and B.

Findings 21 The only dispute between the parties is whether the demolition application should be accompanied by an application for redeveloping the site. There is no contention that the demolition, by itself, is in any way undesirable or that the urban landscape would be adversely affected if the site were left vacant, which, given its value, is highly unlikely. The council's justification for its position is that, without an application for the "integrated" redevelopment of the site (ie as one single design), the applicant is able to sell the three allotments separately and the new owners would then be able to lodge three separate applications, designed by three different designers, for three separate houses. The council's advocate, Ms J Walsh, submitted that this would place great "pressure" on the council, because three separate applicants are likely to want to build houses that do not comply with the council's controls. 22 In my opinion, the council's position is unjustified. I have several reasons for reaching this conclusion. First and foremost, it is not possible to deprive the applicant of the ability to sell the three allotments separately, whether or not the applicant lodges an application for an integrated proposal for the site. If there were an approved integrated application, the applicant could proceed with only the demolition and remediation part. The allotments could be sold and separate applications for their development could be lodged, notwithstanding the existence of a consent for an integrated proposal. It goes without saying that the council would assess such applications against its controls in DCP 2000. 23 I turn to the above-mentioned controls. The evidence suggests that only one of those controls, the setbacks from side boundaries, could not be fully applied in one of the three allotments, namely lot A, which has a width of 7.5m. There would no difficulty in requiring a setback of 1.5m, since 6m is an adequate width for a house. In the context of the Balmain peninsula, a 6-m wide house is even relatively wide. On the other two allotments, the side setbacks could be fully, or almost fully, applied. Other controls, such as Floor Space Ratio and landscaped area, could also be met without difficulty. I do not accept therefore, that three separate applications for the three sites would place any more pressure on the council than the pressure to which it is subject in most applications. 24 Ms Laidlaw based her preference for an integrated application on the possibility that this would reduce the number of vehicular crossings required. However, an integrated application that relies on one vehicular crossing would require access ramps or car lifts; these are entirely out of character with Tilba Avenue and the conservation area. I note that numerous new developments in Balmain have single garages. Even if the two wider sites have double garages at street level, the total width devoted to vehicular crossings for the three sites would be 15m, which is half the width of the site. The remaining half would be available for landscaping. 25 All experts agreed that in any redevelopment of the site a gap would be of great urban landscape benefit, since it would allow a view of the water from Tilba Avenue. Mr Cook's concern was that he should re-claim his water view through a gap lost in the 1980s. A gap in the future development of the site is much more likely with the individual development of the three sites than with an integrated single design. 26 In conclusion: acceptable development of this site is possible both with single integrated development and with three separately designed proposals. In my opinion, the chances of development sympathetic to its context are slightly higher with separate development because single houses require side setbacks and side setbacks will produce the currently missing urban design element from this part of Tilba Avenue: water views from the street through gaps between buildings.

The draft amendment to the DCP 27 As stated above, a draft amendment to DCP 2000, if adopted, will generally require a development application for demolition of all, or a substantial part of, residential buildings on a site to include an application for the replacement buildings on the site (emphasis added). The principle on which this requirement is based is that the council wishes to allow demolition of existing residential buildings where the replacement buildings are capable of satisfying the suite of controls for residential development in its LEP and DCP 2000. 28 The fact that the draft amendment came off exhibition only a few days before the hearing and therefore the council has not had an opportunity to assess responses to it, would suggest that only minor weight should be given to it. However, in my opinion, in this case the amendment should not be applied even if it had been part of the DCP at the time the application was lodged. This is because, in coming to the conclusion that a development application for the site's future development is not necessary at the demolition stage, I have assessed the potential of the three sites for development and found that, with the exception of full compliance with the side setback requirements in the case of one allotment, the three allotments can be developed in satisfaction, or near satisfaction, of the council's suite of controls. They are no different from many typical allotments in the area, including several very close to the site. The raison d'être of the draft requirement is therefore met by the application. I note that the draft amendment includes the word generally, so that the requirement does not have to be applied in all cases. A more purposeful wording of the draft amendment would have been: The council will require a development application for demolition of all, or a substantial part of, residential buildings on a site to include an application for the replacement buildings where there is reasonable apprehension that the replacement buildings will not be capable of satisfying the suite of controls for residential development in the LEP and DCP 2000.

The Court's principle and previous judgment 29 In Parrott v Kiama [2004] NSWLEC 77 the Court established a principle relating to subdivision and building envelope control. In paragraph 17 of the judgment the Court asked the rhetorical question: When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can be later built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours are likely and need careful design to minimise them. 30 The principle applies to subdivision, not demolition. I note that the applicant has conceded that its subdivision application for the site, lodged with the council in December 2007, is inadequate because it does not include constraints on future buildings. To the extent that the applicant already has three allotments and does not need to subdivide, I have already found that those allotments are similar to others in the vicinity and are capable of being developed in compliance of the council's controls. The possibility that one or more future owner may in the future apply for a greedy and insensitive proposal is one that the council faces in respect of all allotments in its area. 31 In Jones v Leichhardt Municipal Council [2004] NSWLEC 379 the Court refused a development application for demolition on the grounds that it also refused the application for the redevelopment of the site. The judgment deals with this issue in a single paragraph and there is no indication that this matter was an issue in the proceedings or even opposed by the applicant. It may be that in that case the applicant did not want to demolish the existing building, which presumably had some economic value, until a replacement was approved. I cannot tell from the judgment.

Conclusions 32 The council contended that a development application for the demolition of the existing buildings on the site should be accompanied by an application for the replacement buildings. The Court does not accept this contention. There are two possible outcomes following demolition. One is that the three existing allotments comprising the site will be sold and developed separately. There is no reason why this form of development cannot be achieved in compliance with the council's controls. The other outcome is that the applicant applies for a re-subdivision of the site (as indeed it already has), in which case all the experts agreed and the applicant conceded that a form of building envelope control is a necessary part of the development application for subdivision. For the above reasons the appeal is upheld.

2. Development application to demolish most of the existing structures and remediate the contaminated parts of lots A and B DP 395221 and Part lots 3 and 4 DP 456207, known as 1-5 Tilba Avenue, Balmain is determined by the grant of consent subject to the conditions in annexure A.

3. The exhibits are returned except Exhibits 4 and B.

      Dr John Roseth
      Senior Commissioner

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