Ramsay v Leichhardt Council

Applicant: Mr J Strati, solicitor of Avendra Singh Strati & Kam LEGAL REPRESENTATIVES: Respondent: Ms E Ranken, solicitor or Pike Pike &Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10256 of 2005 Colin James Ramsay v Leichhardt Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal of an application to add a residential floor to the existing office building on lot 31, s3, DP 1162, known as 310 Norton Street, Leichhardt.

The site 2 The site is on the western side and northern end of Norton Street, close to its intersection with the City West Link Road. The existing office building is single level facing Norton Street, with an additional parking level at the rear, below the split-level offices. The perception from the west is of a two-storey building. The rear yard is used for parking. The width of the site is 10m, its depth is 31m and its area is 307m2. 3 The built form of the immediate neighbours in Norton Street is a mix of commercial and residential buildings, including Victorian terraces, attached and detached contemporary buildings of one and two-storeys, and single-storey houses. Adjoining to the north is a retail/commercial development, which is the subject of a development application for a three-storey mixed development. The council has refused that application and the applicant has lodged an appeal that has not yet been heard. To the south is a cottage used as a residence. To the west are residential properties fronting to James Street. No 77 James Street adjoins directly. It is about 800mm below the level of the western end of the site. Along the common boundary are a 1.8m high fence and a 2.5m high hedge. No 75 James Street adjoins at the corner and has a similar relationship. 4 The boundary between the commercial and residential zones runs along the rear boundaries of the Norton Street and James Street properties.

The proposal 5 The applicant proposes to retain the office floor and to add a residential floor on top of the existing building. The altered building would appear two-storeys to Norton Street and three-storeys to the James Street properties. The existing parking provision for six cars is to be retained. 6 The applicant lodged the development application in December 2004 and amended it in April 2005. The council advertised the application in January 2005 and received objections from the owners of 75 and 77 James Street. The council has not determined the application.

Relevant planning controls 7 Local Environmental Plan 2000 (LEP 2000) zones the site "Business", a zone in which residential and commercial use is permissible with consent. The maximum Floor Space Ratio (FSR) is 1.5:1, a control with which the proposal comfortably complies. 8 Development Control Plan 2000 (DCP 2000) contains more detailed controls than the LEP. It establishes a building envelope of 6m at the boundary extended at 45o towards the centre of the site. The proposal complies.

The issues 9 In its amended Statement of Issues the council identified nine issues. During the on-site hearing the issues were reduced as follows: · Is the rear of the proposal too bulky? · Is there sufficient sunlight into the new dwelling? · Should the proposed awning be straight or curved? · Is the existing parking adequate for the new development? · Are the existing drainage arrangements acceptable for the new proposal? 10 Since the last four are issues of detail, the principal task of the Court is to resolve is the first issue.

The impact of the rear of the proposal The evidence 11 The Court heard the objections of Mr J Garrett, who lives at 75 James Street, adjoining the site at its southwest corner. The proposal would overshadow about half of Mr Garrett's rear yard at 9am at mid-winter. The effect would last until about 11am, at which time proposal would no longer have an impact. Thus the effect of the proposal will be to remove early morning sunlight from Mr Garrett's property. However, more than 3 hours of sunlight over half the private open space will be preserved, so the impact is within the guidelines established by DCP 2000. 12 Mr P Gezekamp, who lives at 77 James Street, adjoining the site to the west, told the Court that his major objection was the loss of privacy from the new residential floor above the existing offices. He had already grown a hedge over 2m high to protect himself from being overlooked from the existing building. The hedge overshadows his rear yard and he cannot grow it any higher. Both objectors were unhappy about seeing additional bulk to their north. They considered that the existing building was bulky enough already. 13 The Court-appointed expert, Mr S Harding, said that in his opinion the massing of the proposal was acceptable. He pointed to the fact that the proposal was well within the FSR limit of 1.5:1 and the building envelope. 14 The council's advocate, Ms E Ranken, said that the council's position was that the first floor should set back 4.5m from the rear of the existing building. She did not cite any expert opinion for this position.

Findings 15 Two key aspects affect this proposal. The first is that the site is at a zone interface between commercial and residential zoning. The second is that the design of the proposal is constrained by the shape of the existing building, which is already two storeys at the rear and is likely to have been designed without consideration of a residential floor being added to it. 16 In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, Bly C set out a principle on how development at zone interfaces should be assessed. The Commissioner said: As a matter of principle, at a zone interface…, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. 17 Applying the principle to this case suggests that the residents of the properties in James Street must accept that they adjoin a commercial zone and that they cannot reasonably expect development to their east to be the same as if they adjoined a residential zone. Conversely, the designer of this proposal must accept that the proposal will affect people's residential amenity, which must be assessed with more sensitivity than if it were impacting on another commercial property. There are no guidelines or suggestions in LEP 2000 or DCP 2000 on how the zone interface principle should be interpreted in practice, so it falls to the Court to formulate such guidelines. 18 In my opinion, the residents of James Street have a reasonable expectation of a 6m setback from their common boundary, with a strip of dense landscaping along that boundary. (This distance is based on the rule-of-thumb 12m separation generally accepted for reasonable privacy, and on the assumption that there will be at least 6m setback provided on the residential properties.) Beyond the 6m wide setback, there may be a two-storey building that is fully visible from the residential properties in James Street. Impacts of visual bulk, overlooking or overshadowing resulting from a two-storey building set back 6m from the common boundary are likely to be considered as reasonable impacts arising from the adjoining commercial zoning. 19 Given that DCP 2000 does not contain a two-storey height limit for the site (and other similarly zoned sites), I do not think that a blanket two-storey limit is reasonable. What is important is that third and subsequent storeys should not be visible (or at least not be wholly visible) from the residential properties. A third storey should therefore be set back behind the two-storey portion, so as not to be visible from the rear yards of the James Street properties (assessed from the view point of a person with an eye level of 1.6m, standing at 6m from the common boundary). Subsequent storeys should also be invisible from the James Street properties. 20 The application of the above guideline to the proposal must take into account that the proposal is constrained by the existing building, which has a larger setback than 6m but which does not allow for strip landscaping at the common boundary. The application provides insufficient information on levels to allow me to draw an accurate section through the James Street properties and the subject site to determine at exactly what point the proposed residential floor would cease to be visible from the James Street properties. Based on the incomplete information available to me, it appears that the setback of 4.5m suggested by the council would generally comply with the guideline. If the residential floor set back by 4.5m, it would either not be seen, or would be only partially seen, from the rear of the James Street properties. 21 I have taken into consideration that the proposal is well below the permissible FSR for the site. The fact that realising the development potential of the site appears to be incompatible with a sensitive design towards the James Street properties is, in my opinion, due to the fact that the existing building so strongly constrains the design. If this proposal were unconstrained by the existing building, it could achieve more floor space without presenting such a large bulk towards the James Street properties.

Sunlight, awning, parking and drainage 22 In Mr Harding's opinion, the solar access to the dwelling is insufficient, and he suggested ways of allowing in more sunlight. I accept his evidence. 23 In Mr Harding's opinion, the proposed awning does not relate to the street or to other awnings and he recommends a straight awning that can connect with awnings on adjoining sites. I accept his evidence. 24 The dispute about parking relates to whether or not the parking should comply with current requirements. The applicant argues that the existing arrangements should not be disturbed. Mr Harding did not comment. 25 However, it became clear at the on-site hearing that the applicant does not now comply with the parking-related conditions of consent for the existing development. This is because the garage under the building is used as a store and not as a garage, as indicated on the development application. In my opinion, the applicant should comply with those conditions, and if it does, there is sufficient area for complying with the current parking requirements of the council and the relevant Australian standard. 26 The dispute about drainage is similar to that about parking. The applicant maintains that the addition of another storey does not increase the run-off from the site, so the existing drainage arrangements should be adequate. However, the council's standards have increased since the proposal was approved. It is a well-established principle of development control that when an existing development is altered or added to in a major way, current standards should apply. In my opinion, the council is justified in applying the same requirements in respect of stormwater run-off as it would if this were a new development. 27 There is one proviso to the above finding. During the on-site hearing there was discussion of a reasonable solution to discharging the stormwater to Norton Street without the need for pumping. In the short time available the council's engineer could not suggest a reasonable solution. If there exists no reasonable way of complying with the council's requirements, a failure to do so would not justify the refusal of the application.

Conclusion 28 The above findings would require a re-design of the proposal, in effect reducing the depth of the residential floor by 4.5m. Given the generous size of the rooms, in my opinion, this would not be difficult to achieve. It would be necessary to notify the objectors of any amended proposal and to invite their comment. 29 One option for the Court would be to dismiss the appeal, thus allowing the applicant to lodge a revised development application with the council. Another would be to adjourn the proceedings, allowing the applicant to file amended drawings that reflect the findings of this judgment. Following notification of the objectors and, if necessary, submission by the parties, the Court would then determine the appeal. 30 I invite the parties to advise the Court of their position.

Direction The Court directs the parties to indicate to the Registrar on how they propose to progress the matter, · by eCourt before 12 August 2005, if they reach agreement; · at the callover on 12 August 2005, if they do not reach agreement.

      Dr John Roseth
      Senior Commissioner

15/08/2005 - Case cited in text left off the cover sheet - Paragraph(s) Cases cited on cover 15/08/2005 - Word "in" unnedessary - Paragraph(s) cover sheet 15/08/2005 - Case cited also appeared under legislation cited - Paragraph(s) cover sheet

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