Waters v Leichhardt C

Waters v Leichhardt C - [2005] NSWLEC 390 - NSWLEC 2005 case summary — Zoe

[14]

4 On the east side of Short Street, opposite the site, is a high pike staff fence. Behind the fence is about a 10 m cliff down to an apartment development on the foreshore of Mort Bay. That development is on land that used to be the Mort's Dock shipyard. As a result the houses along about a 200 m length of Short Street, had unobstructed views over Mort Bay towards the East Balmain peninsula and the city skyline beyond. The issues in the appeal are: Issue (1) Floor Space Ratio. The proposed development does not comply with the Floor Space Ratio development standards set out in cl 19(2) of the Leichhardt LEP 2000: "Clause 19(2). Except where the development is carried out in accordance with cl 23(1) consent must not be granted to the carrying out of a residential development on land within a density area if it will result in a Floor Space Ratio exceeding the ratio shown for the density area as in Balmain, 0.7:1." The proposal would result in a Floor Space Ratio of 0.86:1 excluding the internal carparking or 0.98:1 including the internal carparking. Council says that although the ground parking level, Lower Ground Floor Plan, DA04A does not protrude more than 1 m above existing ground, it should not be characterised as a basement because the garaging is at a similar level to the adjacent street and because the garage level is wholly visible from the street. The garaging at this lower ground floor level is more appropriately characterised as "internal carparking spaces", which are not excluded from the definition of gross floor area. The definition of gross floor area in Leichhardt LEP 2000 is: "The total of a building's floor space measured between the outer edges of the outside walls or the centre line of any party wall and includes mezzanines, attics, internal car spaces, garages, lofts and studios. It does not include projections outside the external walls of the building, paved areas, voids or basements used for carparking where the carparking area does not protrude more than 1 m above ground level." Ground level is defined in the statute as the level of ground at 24 October 2000. Even if the garaging is held to be a "basement", council's view is that because the garage level is above the level of the adjoining street and is wholly visible from the street, it contributes to the overall bulk of the building and this should be taken into account when a determination is made as to whether the State Environmental Planning Policy No. 1 objection is supported. The objectives of the Floor Space Ratio standard are set out in cl 17(a) of Leichhardt LEP 2000 specifically: "To provide development standards to ensure that the density and landscaped areas 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 DCP 2000 to achieve the desired future of character". More generally the purpose of the FSR control is to control the bulk and scale of development and its consequent impacts. Council does not support the State Environmental Planning Policy No. 1 objection submitted by the applicant in relation to Floor Space Ratio because: (a) the excedence is significant;

[18]

(e) The applicant's State Environmental Planning Policy No. 1 objection is not well founded because it is predicated on the assumption that the garaging and rooms at the lower ground floor level do not contribute to the visual bulk of the proposed building when the opposite is the case. Whereas the applicant contends that the garaging and the habitable floor area at lower ground level should be excluded from the Floor Space Ratio of calculation, Council's contrary view is that the garaging and habitable floor space at this level, both clearly contribute to visual bulk from a merit perspective and the visual bulk of these areas must be fully taken into account when assessing the consistency of the proposal with the intent of the standard. Also the State Environmental Planning Policy No. 1 objection is predicated on the assumption that there is no impact from the non-compliance in terms of streetscape and amenity. Council's view is that a reduced building envelope would lead to a more sympathetic presentation to the street including a stepping back at upper levels and a reduced impact on views to neighbours to the rear by setting in the upper level to a greater extent from the side boundary so as to maintain view corridors. In council's assessment the view loss to neighbours is primarily the result of the reduced side setbacks at the first floor plan rather than the height of the roof per se , that is it results from the prolongation of the vertical walls from the floor below at the same side setback compared to the existing building where the setback at this level effectively increases due to the hip form of the roof. Issue (2). Non-compliance with the provisions of B1.2 of Development Control Plan building envelope, form and siting - side setbacks. The proposal does not comply with the side setback requirements set out in part B1.2 of the Development Control Plan, which would require the proposed building to be set back in excess of 4 m. Although s B1.2 of the DCP provides that council may consider variations to the side setback control where specified criteria are met, council considers that the proposal does not meet those criteria in that: (a) higher proportions of the buildings are not set back in accordance with the setback control. The proposal conversely maintains the same side setback at ground and first floor level and it has a parapet style of roof. This is a critical issue in terms of the view corridors obtained by residents of Rowntree Street to the rear because these properties obtained view corridors along the existing side setbacks and across the pitched slope of the existing hip roof rather than the upper most ridgeline. Had the proposal respected this design principle then view corridors would have been maintained;

[19]

(b) the bulk and scale of the development is not minimised by reduced floor to ceiling heights. Although floor to ceiling heights have been lowered under the current amended plans they are not reduced compared to the relevant residential development standards. For example the state government's residential flat design code and a 2.4 m floor to ceiling height is maintained for the garage, but floor level of this garage unchanged. As identified by council's architect planner there is scope for the garage to be lowered further into the ground similar to No. 192 Short Street, although No. 196 Short Street has its garage at street level. It will be noted that the approved plans for this development notated this as an existing garage. Council submits that to use excessively elevated floor levels are particularly unreasonable as the steep fall in levels on the opposite side of Short Street is such that there is no interruption to the views available to the subject property from development on this low side. The additional bulk arising from these design features has adverse consequences in terms of the streetscape, and in terms of the amenity of the adjoining properties and properties to the rear as in bulk and view loss; and (c) the potential impacts on amenity of adjoining properties in terms of privacy and bulk and scale are not minimised. Issue (3) Non-compliance with the provisions of B1.2 of DCP 2000 building envelope form and siting-building envelope. The proposal with a front wall height of up to 8 m, measured from existing ground level, as opposed to finished ground level which is lower, presents a significant variation to the 6 m building envelope control contained in part B1.2 of DCP 2000. This results in an unduly dominant and hard edge to the street with a vertical rise of three storeys incorporating limited articulation on the vertical plane. Council's view is that the first floor should be set back further from the street to respect this control and to present at a lesser scaled, wall to the street with the upper most level appearing more recessive. Issue (4) Non-compliance with the provision of B1.2 of DCP 2000 building envelope form and siting-front setbacks. Council submits that the proposal does not present a satisfactory relationship to the front boundary/streetscape of Short Street particularly insofar as its first floor level projects by around 1.35 m closer to the street and neighbouring developments to either side. This results in the proposal presenting a more dominant form and a harder edge to the street than the adjoining houses, which cut back and incorporate greater articulation. The glazed balustrading will tend to add to, rather than reduce bulk and a more open form would be preferred. Issue (5) Impact on views. The proposal will have an unreasonable adverse impact on view corridors towards the city and harbour as enjoyed by residents of Rowntree Street, to the rear including No. 227, No. 229, No. 231 and No. 233 Rowntree Street. These properties enjoy limited but highly valued views along the corridors provided by the side setbacks of the existing cottage and across the pitched form of the existing hipped roof. The impact is unreasonable in absolute terms and also having regard to the fact that the impact arises or is otherwise to be associated with non-compliances with the building envelope provisions of part B1.2 of DCP 2000 and the Floor Space Ratio standard of LEP 2000. In this regard the proposed development does not comply with the side setback provisions of part B1.2 of DCP 2000 and reduces the side setback on the eastern side compared to the existing cottage. In addition, whereas the existing cottage has a hip roof form which allows views, both through the side setback and over the sides of the roof, the proposal extends its wall up to the maximum height which exceeds that of the existing cottage and does not set in further from the side boundaries at the upper most level in a manner promoted by part B1.2 of the DCP in circumstances where there is a variation sought to the side setback provisions. Additionally, due to the Floor Space Ratio non-compliance with LEP 2000, the overall size of the building is greater than anticipated by that LEP. The proposal is contrary to the objectives of part B3.4 of the DCP access to views which provides: "Ensure existing views and vistas are protected and enhanced where possible, and provide new view sharing between new and existing development". It is contrary to both of the controls set out in this part and its design is contrary to the guidelines to promote view sharing including: (a) reducing the height and bulk of the building;

[21]

(g) using hipped or gabled roof forms. Issue (6) Inconsistency with pt B1.5, elevations and materials and pt B1.6, front gardens and dwelling entries, of DCP 2000. As particularised under issues 3 and 4, council submits that the overall form of the development as presented to Short Street, is inappropriate by reason of its height at the street and the lack of articulation of its form leading to an unduly dominant and box-like presentation. The extent of glazing and the use of glazed balustrades is inappropriate and a greater proportion of solid elements should be used to articulate a more vertical rather than as proposed horizontal proportion to the built form. By slightly lowering the building without addressing this need for more vertical proportion the amended plans actually exacerbate council's concerns in this regard. In terms of these aspects the proposal does not take reference from and complement the existing streetscape character. The proposed treatment at pedestrian level on Short Street is improved under the amended plans. However, the dwelling entry remains to the side of the house. It does not address the street. The effective garage width is maintained notwithstanding the planter bed placed in front of part of it and the floor level and prominence of the garage is not changed. This is contrary to pt B1.6 of DCP 2000, which has the objective: "design front gardens to act as transitional spaces between the public street and private dwellings, which improve security and contribute to the streetscape". Issue (7) Inconsistency with pt B1.3 of DCP 2000, design of car parking. The proposed car parking arrangements presents an unsympathetic appearance to Short Street and is contrary to the design guidance set out in pt B1.3 of DCP 2000. This part requires, inter alia , that where garaging forms part of the main front wall of the dwelling it must be less than half the width of the building and it must be subordinate to the main elevational detail. The proposed garage entry at 5.6 m is over half of the building width of 10.8 m. Additionally, as the garage has been placed at the same level as the street it forms an unduly dominant element at the front elevation of the building. This adverse impact is then compounded by the harsh and unsympathetic impact of the high wall, which extends across the remainder of the frontage. Although this is softened to some extent in the amended plans by the incorporation of the planter beds this feature is still primarily structural rather than of soft landscaped character. Council's view is that the floor of the garage should be lowered below the level of Short Street and reduced in width similar to the approach adopted in No. 192 Short Street. A single width driveway should be used which could then fan out under the building allowing for two angled car spaces. The remainder of the frontage should be treated in a more pedestrian friendly fashion incorporating soft landscape elements, lower and less dominant built structures and a more visible dwelling entry. Council notes that the garage to No. 196 was notated on the approved plans for this dwelling as a pre-existing garage and this should not be used as a reference point for the subject development. Issue (8) Issues raised by residents: (a) impact of view loss from the square form of the building which does not set in at the upper level and interrupts views to the harbour and city from the residential properties located behind the site in Rowntree Street;

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Parties

Cases Cited (1)