Pontlevis Pty Limited v Leichhardt Municipal Council

The proposal 14This appeal involves the subdivision of lot 12, the largest of the three allotments, to be divided equally along its length into two lots, lot 5(1) and lot 5(2). Lot 5(1) has an area of 375.6 sq m and a width of approximately 6 m (halfway down the block) and splayed frontage of 6.795 m and lot 2 has an area of 365.3 sq m and a width of approximately 6.5 m and a splayed frontage of 8.035 m. 15The proposed building works are described in paragraphs 1.8 to 1.13 of the agreed statement. In summary, it is a proposal for two three-storey dwellings with a deck, swimming pool and landscaped area extending to the sea wall. At street level each development has a double carport, entry with driveway and landscaping and one tree. The dwellings are of masonry construction and contemporary with a "butterfly" roof design falling to a central box gutter on the common wall between the two dwellings. 16For dwelling 5(1) the side wall on the ground floor on level one have a nil setback to the northern side boundary for most of its length with a 900 mm setback against the stairwell. On level two the side wall is set back 900 mm from the northern side boundary with a planter shown in that setback. The double carport extends to the northern side boundary for a length of 6 m. This carport is forward of the building's front building line and setback a minimum of 1.78 m from the front boundary. 17For dwelling 5(2), the side wall on the ground floor, level one and level two, is set back 900 mm from the southern side boundary for most of its length with a 1.3 m setback adjacent to the stairwell. The double carport is forward of the proposed dwellings front building line with a minimum setback of 1.78 m from the front boundary. It is set back approximately 1 m from the northern side and 500 mm from the southern side boundary. The carport is 6 m in length and in the order of 4.9 to 5 m wide. The proposed dwellings are constructed with their rear alignments at level one, breaching the building location zone (BLZ) established under part B1.2 of DCP 2000. However, the measurement of the DLZ is at issue. The applicant maintains that the BLZ should be measured from the edge of the verandah of 7 Tilba Avenue, rather than the building. After a consideration of the words in the control and the evidence I accept council's measurement of the BLZ. The rear walls of both dwellings comply with the foreshore building line (FBL) established under the LEP. However, at ground level the deck and the shared common boundary walls extend beyond the FBL. 18The elevation to Tilba Avenue will be of two double carports with a cantilevered pitched roof to a height of approximately 2.8 m (dwelling 5(2)) and 3.4 m (dwelling 5(1)) above street level. The elevation to Iron Cove is described as two three-storey attached dwellings. A 1.8 m masonry wall is proposed between the proposed lots and between each of the lots in the adjoining vacant land, with this reducing to 1.2 m adjacent to the waterfront.

The site 19The site (lot 12) has an area of 740.9 sq m. It has a splayed frontage of 14.835 m to Tilba Avenue and slightly wider frontage of 15.235 m to Iron Cove. The site has a depth of 65.44 m (northern boundary) and 55.75 m (southern boundary). The width of the site is approximately 12.5 m. 20The site falls from the road to the water by approximately 9 m with a steep fall of approximate 6 m at the northeastern corner adjacent to Tilba Avenue. The level at the northeastern corner adjacent to Tilba Avenue is RL10.79 and at the waterfront, RL1.69. The levels have been modified as a result of demolition and remediation works.

The adjoining properties and localities 21The view confirmed that the streetscape in Tilba Avenue can be characterized as containing detached and semi-detached dwellings of mixed form and appearance. To the north of the site are two vacant lots. Although I understand that there is an application before the council to develop lot 11, DP1132009 at 3 Tilba Avenue with a single dwelling and car parking. Further to the north is a property known as 1A Tilba Avenue. A freestanding two-story older style dwelling, with a detached garage facing Tilba Avenue separated from the house by a front garden occupies on that site. 22Opposite the site to the east fronting Tilba Avenue are two-storey freestanding dwellings. To the south of the site is a detached dwelling house at 7 Tilba Avenue with detached garage adjacent to the street, separated by a garden. As noted earlier, the owner of that property addressed the Court and spoke to his written objection. Those objections are: + "The unbroken wall from street down to front veranda, the height of the wall and its lack of articulation; + The lack of green patch at the front of the site; + If only one house, could have a garden at the street front before the high wall started; + If you had only one dwelling, the building would not have to be as wide and you could have garden space and view slots from Tilba Avenue down to the water; + If only one house, could have more scope for the building to be setback further from the side boundary with my property and for it to be broken up into different elements; + Privacy impacts from a window on the elevation facing his property." 23Several objectors echoed the concerns and objections raised by the owner of 7 Tilba Avenue. I also note council's expert Miss Laidlaw advised that that a condition requiring a privacy screen on the upper level of the development would address the privacy issue identified).

Statutory controls 24The site is located within the Residential zone, pursuant to the LEP and the proposed development is permissible with consent in the zone. However, the control in cl 7(3) provides that development consent must not be granted unless the consent authority has taken into consideration relevant objectives of the LEP and is satisfied that the development is consistent with those objectives. 25Clause 13(2) sets out the general objective for the built and natural environment and amenity, it encourages the design of buildings, structures and spaces that are compatible with the character, form and scale of the area. 26Relevantly, cl 17 provides objectives in relation to housing. It provides: The provision of development standards to ensure that the density and landscaped area of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2002 to achieve the desired future character. 27The LEP in cl 19(2) sets a maximum floor space ratio of .7:1 and this development over both lots proposes an FSR of .171:1 - which is technically a breach of the standard. Clause 19(3) provides for a minimum landscape area of 40% of the site of which 25% must be soft landscaping. While the applicant contends that the proposal is compliant with the landscaped area ratio at 47% of the overall site, the council does not agree. It contends that parts of the area calculated are not at ground level as required by the definition of landscaped area and in this regard the proposal does not meet this criterion. Council estimates only 32% landscaped area is achieved. The applicant has submitted a SEPP 1 objection to compliance with the standard, on the basis that the objectives of the standard are achieved; although it concedes that the landscape area at finished ground level exceeds 40%. 28Clause 19(4) deals with subdivision control. The proposed development complies with the minimum site area of 200 sq m. Despite that however, cl 30 provides: Before consenting to a subdivision of land, the consent authority must consider whether the subdivision will: (a) provide an appropriate setting for development in terms of site area, dimensions and amenity to satisfy the needs of future residents and businesses; and (b) protect the urban form, scale and density of the locality. 29In the joint statement prepared by the town planners, which is exhibit 2, the experts disagree as to whether the proposed lots comply with cll 30(a) and (b) of the LEP. It is the applicant's evidence that a 6 m width of lot and dwelling is not uncharacteristic of the Balmain Peninsula Area. However, council's evidence is that lots in the immediate locality are significantly larger and wider than 6 m/6.5 m wide lots proposed in this application. The wider lots, it contends, promotes the development of freestanding detached and semi-detached dwellings, a form consistent with the desired future character statement for the DCP 2000, as well as with the balance between built form and landscape to be achieved/maintained through side setbacks and landscaping. 30The fact that waterfront lots tend to be significantly wider than the proposed lots does not make them uncharacteristic. They are still long and narrow, but as explained in the DCP, historically grander houses were located on the waterfront, larger sites with smaller more modest housing away from the water's edge. I accept, as council's expert suggests, that the narrow width of the proposed lots virtually dictates a terrace style of development, built on, or close to the side boundaries, and this, indeed, is the character of the actual dwellings proposed in this application. The attached form of the development is not characteristic of the larger lots at the water's edge or the desired future character that promotes semi-detached or detached freestanding forms with separation between them. I do not accept, as the applicant contends, "...it is inevitable that development of lots 1 to 5 Tilba Avenue will be a row of dwellings positioned quite close to each other. There is no other way unless lots are amalgamated " (exhibit 2, p 3, para 1.4). In the appeal, the recently amalgamated lot 12 is proposed to be re subdivided. A subdivision as proposed will dictate that dwellings will be positioned quite close to each other. If the lot remains unsubdivided, there is potential based on councils evidence, to develop detached/semi-detached freestanding forms with separation between them. 31The impact of the proposed design with its long wall facing 7 Tilba Avenue with minimal setback on the ground floor and with a slight increase on the first floor can be avoided if the site was not subdivided but developed with near compliant setback. Such a development would also avoid the overshadowing which would affect number 7 as a result of the proximity of the bulk and form of this development so close to the boundary.

Setback 32The council concedes that compliance with the setback control, which is a sliding scale, set out in Part B1.2 of the DCP, is difficult. However the configuration of this proposal as a terrace form with a common wall and nil setback to the northern side at ground floor and first floor and a minimal southern side setback of 900 mm is not justifiable on the site. The pattern of development on Tilba Avenue will be compromised if this subdivision were to be approved, with the zero setbacks as proposed. While the articulation of the built form and gaps between buildings attempts to overcome the noncompliant setback. It is unacceptable on council's evidence. The desired future character statement, in the DCP Part A. 10.6.6, promotes freestanding or detached dwelling forms as being characteristic of this locality and further provides that: Development visible from the water is to be designed to preserve the conservation values of the area. When viewed from the water a balance between built form and landscape is to be achieved/maintained through side setbacks and landscaping. 33I accept, as Ms Laidlaw pointed out at the view, that side setbacks are essential to achieve the desired future character, particularly when viewed from the water. A terrace form, built on or very close to the side boundaries, conversely is, obviously contrary to this existing and desired future character. Minimal side setbacks on smaller long narrow lots in other parts of the suburb might be justified under the controls. 34However, in this waterfront area where there are larger lots with existing side setbacks (as evidenced by 1A and 7 Tilba Avenue adjoining the site) it is unacceptable to have a nil or 900mm setback at ground level. View corridors to the water from Tilba Avenue are dependant on side setbacks between buildings and the proposal does not provide sufficient set back to allow view corridors to and from the water. The setback at the upper level of the development does not overcome this issue. I accept Ms Laidlaw's evidence that the view from Tilba Avenue through the 900 mm setback at the uppermost floor is compromised because of the overhanging roof design of the carport (which sits over this narrow view corridor) and by the horizontal plane of the first floor built to a nil setback on the northern side. 35I accept, as the Council contends, that when viewed from the water you will see a three-story elevation with, over most that elevation, a 900 mm setback to south and a nil setback to the north. I agree with Miss Laidlaw's statement in the joint report that " This 'higher section' of the building thus makes negligible concession to the DCP's variation criteria that higher sections be setback in accordance with the control ." I accept, as she suggests, that - when viewed from the southern side - the negligible side setback produces a highly unsympathetic wall built close to the boundary with 7 Tilba Avenue, a building which itself provides a generous side boundary setback and is a freestanding form in a garden setting. 36I do not think it is relevant to compare the proposed design to the building that has been demolished, particularly when assessing the impact on 7 Tilba Avenue. The amenity impact - by way of bulk and overshadowing on adjoining properties - particularly 7 Tilba Avenue, provides strong justification for the separation of built form from the boundary by an appropriate side setback. I accept it is irrelevant to consider the contribution that the original building on the site made to the character, because this building no longer exists. 37The gaps proposed between the buildings on either side of the lots in conjunction with the development which exists on 7 Tilba Avenue is not sufficient separation. Side setbacks also have capacity for landscaping, but more importantly, the opportunity to reinforce the detached freestanding dwelling form, and distinguish the character of this area from other areas within the municipality. I accept, as council's evidence suggests, that the rear decks of the properties extend beyond the building location zone (under Part B1.2 of the DCP 2000) and that the development also breaches the foreshore building line. These breaches add to the mass of built form when viewed from the water. I do not accept that the proposal complies with the rear BLZ. A line extending between the rear wall of 1A Tilba Avenue and the rear wall of 7 Tilba Avenue in accordance with the DCP determines the rear BLZ and the front BLZ. According to the to the evidence, this is the same BLZ as applied to development application for the adjoining lot 3 Tilba Avenue. 38I accept that the key planning purpose of the BLZ is to ensure development is sited in the location where it is expected which helps to ensure equity in terms of mutual impacts of bulk, scale, overshadowing and between neighboring properties. Secondly, it helps to ensure consistency in streetscape patterns when viewed for the harbour (exhibit 2, p 12, para 3.2). A distinctive feature of Tilba Avenue is the fact that separation between buildings is achieved, not only by side setbacks but by a garden at the frontage and at the water's edge. This is what occurs on 7 Tilba Avenue and 1A Tilba Avenue. However, in this development, as council points out, there is almost solid wall of development from the back edge of the carports up to the rear building location zone, and the double carports are forward of the building line detract from the streetscape and are contrary to requirements of Part A 10.6.6. 39While the FSR breach is minimal, I accept as council suggests, that the breach is dictated by the necessity to build to the maximum in circumstances where there will be a subdivision into uncharacteristically small lots. It is also the result of the chosen built form which is a relatively bulky and unsympathetic terrace style development proposed on each lot. While the planting of the two-angophora trees at the street frontage is an attempt to provide landscaping, the proposal fails to reflect the character of established development on that street, where a dwelling house is separated from the street by a garden or detached garage. The plantings at the rear of the property toward the seawall are of low shrubs and ground cover and do not promote a balance of built form for landscaping as sought for the desire future character. 40In summary, I accept council's evidence that the proposed development does not step down the topography of the site to reflect the original slope, but rather presents as three-storeys to Iron Cove without any visual material stepping of built form. It does offend the Desired Future Character Statement in of Part A 10.6.6 of the DCP. It does not: "Conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi-detached houses with a prevalence of hipped, pitched and gable roof forms. Preserve the established setbacks for each street or promote a balance of landscape to built form in the view of the neighbourhood when viewed from the water.." 41In this regard, the proposed development presents as a terraced style development with nil or negligible side setbacks and significant bulk. It does not promote an appearance of a detached freestanding residence. It does not " conserve the single and double storey, freestanding form, style and materials, characteristics to each street ". In the streetscape its form is dominated by garages and driveway crossings. This particularly arises from the development's failure to comply with the controls for side setback and the BLZ under Part B1.2 of the DCP 2000. After a consideration of all of the matters relevant under s 79C(1) including the DCP and the desired future character of the area, I accept council's evidence that the site is not suitable for this development. The court's orders are (1)The appeal is dismissed. (2)Development consent to DA/2010/503 for subdivision of lot 12 DP 113 2009, known as 5 Tilba Avenue Balmain and the construction of two three-storey attached dwellings with associated parking landscaping and swimming pools on each lot is refused. (3)The exhibits returned. Susan Dixon Commissioner of the Court 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: 15 July 2011