[2001] NSWCA 270
Wehbe v Pittwater Council [2007] NSWLEC 827
Source
Original judgment source is linked above.
Catchwords
[2001] NSWCA 270
Wehbe v Pittwater Council [2007] NSWLEC 827
Judgment (30 paragraphs)
[1]
Judgment
COMMISSIONER: This judgment relates to a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Inner West Council (Council) of Development Application No DA/2023/0912 (DA). The DA seeks consent for demolition of existing buildings, Torrens title subdivision of one lot into two lots, construction of two new detached dwellings (one on each lot); each with a swimming pool, deck, foreshore access, and associated landscaping, all at No. 1 Longview Street, Balmain legally described as Lot 51 in DP1287894 (site).
[2]
Site and setting
I rely on (undisputed) elements of Council's statement of facts and contentions filed 17 May 2024 (Ex 1) for much of the descriptive material in this and the following section.
The site is located on the western side of Longview Street. Its eastern frontage is to the Iron Cove waterway. The site is generally rectangular with a total area of 793.3m2, a width of some 19.35m and a depth of about 41 m. The site falls from the Longview Street frontage, from RL 12.87 at the front entry steps to the site, down to approximately RL 0.64 at the top of wall in the north-western corner of the site immediately adjacent Iron Cove.
The site currently contains a two-storey masonry dwelling. There is a single brick garage on the northern side of the Longview Street frontage. There are other ancillary structures and also a number of trees located on the site. The site has access to a jetty and pontoon in Iron Cove via stairs from the rear yard. A building line setback to Iron Cove, enforceable by covenant, exists on the site's land title which will be explained further below (at [88]).
Development in the site vicinity includes a mix of generally freestanding dwellings. The neighbouring properties accommodate a part two/three storey dwelling at No. 3 Longview Street and a two-storey semi-detached dwelling to the immediate north at No. 8 Broderick Street.
[3]
Inner West Local Environmental Plan 2022
The site is zoned R1 General Residential under Inner West Local Environmental Plan 2022 (IWLEP). The zone objectives are:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To provide residential development that maintains the character of built and natural features in the surrounding area.
The proposal complies with the numerical controls under IWLEP, including with respect to: height of buildings, landscaped areas, site coverage and floor space ratio (Ex 1 p 7).
With the location of certain non-permissible building works within the foreshore building line, the proposed development would breach the "limited development on foreshore area" control under cl 6.5. There was a dispute between the parties, which I will come to below, as to whether this provision (cl 6.5) constitutes a "prohibition" or a "development standard".
The site is located within the Iron Cove Heritage Conservation Area (HCA), under Sch 5 of the IWLEP. In turn the provisions of cl 5.10 apply. This means that in this development application evaluation there is a need, under cl 5.10(4), to consider "the effect of the proposed development on the heritage significance of the (Iron Cove HCA)".
[4]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
With respect to State Environmental Planning Policy (Biodiversity and Conservation) 2021, the site is located within the Foreshores and Waterways Area and adjoins Iron Cove in the Parramatta River which is zoned W5 Water Recreation.
[5]
Leichhardt Development Control Plan 2013
The site is located within the Birchgrove Distinctive Neighbourhood in Part C2.2.2.6 of the Leichhardt Development Control Plan 2013 (LDCP). This and other relevant LDCP provisions are addressed below.
Issues
There is a threshold legal question in relation to the permissibility of the development given the breach of cl 6.5 of IWLEP relating to proposed development within the foreshore building line. The initial question is concerned with whether the control at cl 6.5 is a prohibition or a development standard.
The question of whether cl 6.5 is a development standard, is significant because of the provisions of cl 4.6, which open up the power to grant consent to development, relevantly, even though it contravenes a development standard. There is no such power available if cl 6.5 is found not be a development standard and, as such, it prohibits the proposal outright.
I will deal with this question of whether cl 6.5 is a development standard directly. Notably, in doing so I do not go further into the jurisdictional tests applicable to the question of whether the proposal merits the application of the facilitative powers under cl 4.6(2). This occurs later in the judgement after the case's merits considerations are addressed. Mindful of the Respondent's Written Submissions dated 4 October 2024 (RWS) pars 9.7-9.9, I can summarise the merits considerations in the case as follows:
the effect of the proposed development on the heritage significance of the Iron Cove HCA (which might involve the question of whether the existing building is a contributory item within the HCA)
the acceptability of the proposal's impact on the desired future character of the Birchgrove Distinctive Neighbourhood
whether the proposed dwellings would achieve sufficient solar access.
Here I can also note that the experts providing evidence in this case were as follows:
Expertise Appointed by Joint Report
E Egan Town planning Council Ex 3
A McCabe Town planning Applicant Ex 3
S Croft Heritage conservation Council Ex 5
J Phillips Heritage conservation Applicant Ex 5
[6]
Whether cl 6.5 of IWLEP, relating to limited development in the foreshore, is a development standard
[7]
Statutory provisions
Clause 6.5 is reproduced below, in its entirety:
6.5 Limited development on foreshore area
(1) The objective of this clause is to ensure development in the foreshore area will not -
(a) adversely impact on natural foreshore processes, or
(b) affect the significance and amenity of the area.
(2) This clause applies to land identified as "Foreshore Area" on the Foreshore Building Line Map.
(3) Development consent must not be granted for development on land to which this clause applies except for the following purposes -
(a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,
(b) boat sheds, cycleways, fences, jetties, retaining walls, slipways, swimming pools, walking trails, waterway access stairs, wharves, picnic facilities or other recreation facilities (outdoors).
(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that -
(a) the development will contribute to achieving the objectives for the zone in which the land is located, and
(b) the appearance of a proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and
(c) the development will not cause environmental harm, including -
(i) pollution or siltation of the waterway, or
(ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or
(iii) an adverse effect on drainage patterns, and
(d) the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and
(e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and
(f) the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and
(g) for development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area - the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and
(h) sea level rise or change of flooding patterns as a result of climate change has been considered.
As plain from the above, after establishing objectives, and referencing the control's framing device of the foreshore map itself, subcl 6.5(3) introduces a provision that "consent must not be granted" for development on land within the foreshore. It also introduces certain exception provisions, relating to respectively (a) existing buildings within the foreshore area and (b) certain ancillary buildings or facilities which can have perhaps a direct relation to a foreshore setting. Then subcl 6.5(4) introduces a series of further jurisdictional tests upon a consent authority (matters with which to be "satisfied") before a determination to grant consent can be made.
[8]
Existing and proposed works
The three plans which follow are from Attachment D to the joint report of the town planning experts (Ex 3). In turn they show: the existing building footprint, the proposed footprint at the undercroft level and the proposed footprint at the ground level. Each of the plans also show, by way of dashed lines, both the foreshore building line under IWLEP, and the building line according to the existing covenant (which is located to the west of the IWLEP foreshore line).
Figure 1 - Existing building footprint (ground and first floor) on the site and neighbouring properties (source: Ex 3 Attachment D)
Figure 2 - Proposed works at undercroft level (source: Ex 3 Attachment D)
Figure 3 - Proposed ground floor works (source: Ex 3 Attachment D)
It can be seen that certain works are proposed to the west of both the foreshore line under IWLEP and the building covenant line. Under cl 6.5(3)(b), there is no outright restriction on the development for fences, retaining walls, swimming pools, walking trails, waterway access stairs, wharves, picnic facilities or other recreation facilities (outdoors). Approval may be granted subject to cl 6.5(4). The question involves the development other than that.
[9]
Whether cl 6.5 of IWLEP is a development standard
Development standards is a defined term under s 1.4 of the EPA Act, which I reproduce, relevantly, as follows:
development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,
…
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,
…
While numerous cases were cited in the parties' submissions on this question, I can succinctly note the important factors for me as follows. First, is to note some limits to the reliance on other authorities, this is so given the differences in wordings of foreshore building line provisions and the structure of planning instruments themselves. In turn "the obligation of the Court is to interpret the clause in the instrument before it" (Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 (at 433)). Second is to note the primacy of the definition of development standard under s 1.4 of the EPA Act (eg Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 at [95]). Third is to note findings against "confining" the land the subject of a question relating to prohibition to, relevantly, the land on the foreshore side of the foreshore building line, as put in Lowy v The Land and Environment Court of NSW & Ors (2002) 123 LGERA 179; [2002] NSWCA 353 at [123]:
"I have described this as development of 106 Wolseley Road. In the identification of the development. I do not accept Mr Lowy's submission that, when considering whether a development is prohibited, the relevant land is confined to that the subject of the provision the categorisation of which is in question, here the land on the foreshore side of the foreshore building line. If the land be confined in that way, of necessity there is a prohibition (save that even then consent may be granted in the circumstances in cl 22(4) and (5)). The LEP is a planning instrument. It primarily addresses land in zones, with prohibited or permitted kinds of development. The development is by reference to the land in the zone, here 106 Wolseley Road."
[10]
Clause 6.5 is a development standard
IWLEP is structured in accordance with the Standard Instrument. Part 2 establishes zones under the plan and includes land use tables defining permissible and prohibited development in the zones. Part 4 nominates "principal development standards". Clause 6.5 falls within Pt 6 of IWLEP which is titled "additional local provisions", and in a sense sits alongside Pt 5 titled with "miscellaneous provisions". Together they establish numerous different provisions, sometimes relevant to a particular application - sometimes not, which should be read harmoniously with the provisions at Pt 2 of IWLEP. There is no doubt the provisions at Pt 2, of themselves, establish prohibition and permissibility, in relation to different development types, within different zones. It is clear that the proposed development is permissible on the site given it falls within the R1 zone.
When I examine cl 6.5, it is clear enough that it meets the EPA Act definition of development standard because it fixes a standard in respect of the distance of "a building … from (a) specified point". In the instance of cl 6.5, it establishes a series of points, in the form of a line, which in this case is the foreshore building line, inside of which only certain development would be able to occur (ie in accordance with cl 6.5(3)(a) and (b)). Similarly, it is also the case that cl 6.5 meets the EPA Act definition of development standard because it sets a standard in respect of the "location" and "siting... of a building or work".
When I read the provision contextually (ie mindful of the whole of IWLEP), cl 6.5 should be related to its objectives, which are concerned with preventing development from (1) adversely impacting on natural foreshore processes, and (2) adversely affecting the significance and amenity of the area. Generally, it seems not improbable that these objectives might be achieved without a building being located precisely in compliance with a standardised (ie rather than customised or site specific) setback from, in this instance, Iron Cove.
The proposal is permissible development on the site under IWLEP. Clause 6.5 specifies certain requirements in relation to the carrying out of this permissible development, and in this instance should be determined to be a development standard, subject to the provisions of cl 4.6 of IWLEP. Because some of the queries relating to the considerations pertaining to cl 6.5 involve merits considerations, I will turn back to cl 6.5 and the application of cl 4.6 of IWLEP later in the judgement, after having reviewed relevant merits matters.
[11]
Effect of the proposed development on the heritage significance of the Iron Cove HCA
The initial inquiry with respect to cl 5.10(4) of IWLEP is that of understanding the heritage significance of Iron Cove HCA. Understanding the heritage significance of the Iron Cove HCA allows one to consider the proposal's effect on it. It seems to me the statement of significance for Iron Cove HCA is important here (referenced in the Heritage Impact Statement Tab 17 Class 1 Application filed 22 April 2024 (Ex B), and available from Inner West Council website:
"● One of a number of conservation areas that collectively illustrate the nature of Sydney's early suburbs and Leichhardt's suburban growth particularly between 1871 and 1891, with pockets of infill up to the end of the 1930s (ie prior to World War II). This area is important for illustrating development particularly from 1870s-1910s, and this forms the major element of its identity, with later pockets of infill prior to World War II (ie pre-1939).
● Through the route of its main access roads, demonstrates the subdivision sections, closely related to the landform, drawn up by Surveyor Langley for the sale of Gilchrist's Balmain grant after 1852.
● Illustrates through its irregular small street layout, and varied allotment width and length (within a limited range), the many different groups of speculators and subdividers involved in the development of the area.
● Through the materials of its outer masonry walls, demonstrates the rapid advances in brick making in the Sydney area over the period 1870s-1910s.
● Through its now rare weatherboard buildings it continues to demonstrate the nature of that major construction material in the fabric of early Sydney suburbs.
It is agreed by the heritage experts that the existing building was built between 1885 and 1888, and that it comprises a rendered brick parapet form with skillion roof (Ex 5 p 39), although subject to additions and alterations, apparently associated with a former use as a boarding house. While the experts disagree at least on the extent, there is clearly a link between the existing building and the Iron Cove HCA statement of significance, which suggests to me that the building has potential to play a contributory function to this HCA. I will comment further on this below.
Both Council's DCP and the Court's Planning Principle in Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (Helou), warrant attention here.
Council's contentions refer to Objective O2 and Controls C1. c. ii. of Part C1.2 of LDCP in respect of the demolition. Objective O2 provides as follows:
"To ensure that heritage items or buildings in a Heritage Conservation Area are only demolished where they cannot be reasonably retained or conserved."
Control C1 provides that Council will not approve demolition of a building in a heritage conservation area that contributes positively to the conservation area, unless:
"i. the existing building is found to be structurally unsafe; and
ii. cannot be reasonably repaired; and
iii. the proposed replacement building is consistent with the development controls contained in Inner West LEP 2022 and this Development Control Plan; and
iv. the quality of the proposed replacement building will be compatible with the Heritage Conservation Area or streetscape in terms of scale, materials, details, design style and impact on streetscape."
There is a need to give consideration to these provisions. I also am mindful that one reading of this clause is as a blanket policy to not approve demolition of a contributory building, no matter the quality or extent of positive contribution which is being made. This may be at odds with s 3.43(5)(b) of the EPA Act. That is, cl 5.10 of IWLEP does contemplate the demolition of a building within a HCA (see cl 5.10(2)(a)(iii)). Care is needed to read the above LDCP provision as being not incompatible with such provisions.
Part C1.4 of LDCP then provides further provisions with respect to objectives and controls for heritage conservation areas. Objectives cover the following areas:
encouraging the protection, restoration, continued use and viability of buildings for their original purpose
ensuring development is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter
ensuring development protects and enhances views of the existing building from the public domain
ensuring new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter.
Various general and specific controls are indicated including in relation to roof forms and materials. Under Part C1.4 Control C8, new buildings "need not seek to replicate period details of original buildings in proximity to the site, but rather, demonstrate respect for the form, scale and siting of the immediate area".
I now turn to the Court's Helou principles, which are concerned with the evaluation of the demolition of contributory buildings in heritage conservation areas, and I refer to below:
"[44] A contributory item in a conservation area is a building that is not individually listed as a heritage item, but by virtue of age, scale, materials, details, design style or intactness is consistent with the conservation area, and therefore reinforces its heritage significance.
[45] The demolition of a building which contributes to a conservation area will impact on the area's heritage significance even if its replacement building "fits" into the conservation area. Although the replacement building may be a satisfactory streetscape or urban design outcome, this does not address heritage impacts as the original heritage element has been removed. Despite this, it is open to the consent authority still to permit the demolition of a contributory element, for example, if the replacement has other planning benefits that the original does not.
[46] The following questions should be addressed in assessing whether the demolition should be permitted:
1. What is the heritage significance of the conservation area?
2. What contribution does the individual building make to the significance of the conservation area? …
3. Is the building structurally unsafe? …
4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition?
If the answer is yes, the cost of the necessary remediation/rectification works should be considered.
5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted?
If these costs are reasonable, then remediation/ rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding.
6. Is the replacement of such quality that it will fit into the conservation area?
If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved."
[12]
Evaluation
It seems to me the introductory paragraphs of the Helou planning principle are quite instructive of themselves, and provide a useful opening to the evaluation at hand. Paragraph 44 is useful in identifying the test for qualification as a contributory building (the test of the implications of this come later). Then par 45 draws attention to the fact that while heritage conservation is a very significant part of the NSW planning system, it needs to be understood to sometimes compete with other environmental planning objectives. In this instance, heritage conservation objectives would compete for example with that of "[providing] for the housing needs of the community", as per the first objective of the R1 General Residential zone.
In regard to Question 1 in Helou, the heritage significance of the Iron Cove HCA can be appreciated through the statement of significance above, at [26]. The introduction to the statement of significance is also paraphrased as "why the area is important" in heritage conservation terms. When the statement is reviewed, it does not suggest a broad palette of reasons why this HCA is important (not necessarily a bad thing), at least in relation to the question of the demolition of the existing building on the site. The relevant focus seems to be on illustrating "the nature" of Sydney's early suburban development including the idiosyncratic road and subdivision pattern (responsive to "early speculators and subdividers") and technical achievement relating to construction materials ("rapid expansion of brick making") and methodologies.
In regard to Helou's Question 2, the building's form, at least somewhat still apparent, and time of its construction, suggest the existing building should be thought of as contributory to the illustration of development in that 1870s-1910s period. However, because of various changes to fabric (referenced by Mr Philips at Ex 5 p 38), and certain locational aspects indicated below, any contribution of the existing building to the Iron Cove HCA is not high in my opinion. The building's current form and locational setting does little to "reinforce" the heritage significance of the Iron Cove HCA. Mindful of the statement of significance, the road and subdivision pattern does moreso than the existing building it seems to me.
I do not see the understanding of the Iron Cove HCA's street and subdivision patterns are affected by demolition of the existing building. I also see no tangible prospects for better understanding Sydney's early suburban housing response, in this location. The features to note are perhaps the parapet and skillion roof form. On this point, the building's setting in Longview Street is noteworthy. There are two factors. First, it is associated with limitations to the interpretation of the original built form on the site from the public domain (mindful of alterations and additions). While there are better viewlines a little distance away (eg higher up in Bridge Street), the heritage conservation related built form is less appreciable from closer in Longview Street. Second is the considerable visual changes to housing in Longview Street, otherwise, in the site environs. The adjacent and heritage-listed "brutalist style" building at 8 Broderick Street presents in a considerably more dominant manner.
The technological achievement relating to masonry construction here sits somewhat in isolation and has been subject to alterations, and I accept Mr Phillips' opinion that the form is not uncommon or rare. My sense of a lack of effect on heritage significance might be different if the properties at "Nos. 5, 9, 11 and 13 Phoebe Street", as referenced by Mr Croft (Ex 5 par 2) were in the more immediate site vicinity. I do note Mr Croft's reference to "circa 1940s Milton Kent photos of the site" (Ex 5 Appendix A) and his reference to the existing building as one of a number of "marine dwellings" in the site environment. However, there was evidence to question the accuracy of this building description (Ex 12). I had difficulty seeing this description of the building as an important factor here in this HCA, in any event, given the lack of attention to it in the statement of significance.
In turn, while I see aspects of the existing building as "consistent" with the Iron Cove HCA, I do not see its demolition as having any significant effect on the significance of the Iron Cove HCA. That is to say, the significance of the Iron Cove HCA would be maintained even with the demolition of the existing building on the site.
With respect to Questions 3-5 of Helou, it does not seem to me that there is substantial evidence to suggest that the building could not be retained and possibly adapted to include a perhaps further "stripping back" to the early built form. However, this move would seem to me to bring only very limited benefit in heritage conservation terms. Question 6 of Helou then moves to the consideration of the replacement building, which I will turn to below.
Similarly, when I turn to the relevant DCP provisions, and mindful of Objective O2 in C1.2 (at [29]), the retention of the existing building can be adjudged, considerably, in regard to the qualities of that which it is proposed to be replaced with. The findings below, which accept the proposed development as complementary and compatible in its setting within the Iron Cove HCA, complete a positive finding for the proposal when heritage conservation is under attention.
[13]
Impact on the desired future character of the Birchgrove Distinctive Neighbourhood
LDCP provisions relating to Birchgrove Distinctive Neighbourhood are at Part C2.2.2.6. Some 22 individual controls are listed with Council raising concern in regard to many of these controls. It seems to me that I can capture the essence of the contention through a focus on the following five areas.
[14]
Streetscape
A noteworthy point in relation to streetscape presentation was a change to the proposed roof design. Prior to the hearing, skillion roofs were proposed for each dwelling. An amendment agreed in the course of proceedings changed the roof treatment to an unorthodox in-part hipped roof arrangement at the front.
Mr Croft had concerns that the proposed streetscape presentation (whether skillion or partial hipped) was unacceptable as it was not "compatible with the character and style of contributory buildings in the vicinity" (Ex 5 par 102). I am mindful of the fourth objective of the R1 zone (at [6]). In this Longview Street setting, the question was moreso whether the proposal was compatible with the character and style of buildings in surrounds.
It is readily acceptable that Longview Street, today and albeit located within the Iron Cove HCA, involves quite a mix of forms (eg in regard to built form massing, roof forms, materials and landscape presentation). This setting does not for me prevent, what I at least see to be, a visually harmonious streetscape as things sit now.
I accept the evidence of Ms McCabe that the proposed two side-by-side dwellings with setback areas in between, on lots of more typical width in the surrounding area, was quite complementary to this setting. I accept that 8 Broderick Street provides a reasonable comparative form given its adjacency. Some of the proposed landscaping between the proposed buildings would be able to be viewed from the street (including in this instance through proposed open style fencing), a positive feature in this quite built up setting (notable at p 16 of Ex C).
As indicated by Mr Egan in his oral evidence, the most significant feature of the changes to the roof form, with the recent amending plans, was the associated reduction in visual massing to the street. The amended proposal's height and visual massing to the street are now close to or conforming with DCP building envelope controls.
The garage for Dwelling 1A would be located where the existing garage is located and for Dwelling 1B as a new form in the street. I accept Ms McCabe's evidence that the garages would not be dominant features given the other built-to-boundary garages in the street. Each would be inconsistent with the provisions requiring garages behind the building line. However, such a configuration is commonplace in this street setting (see Ex 3 par 248) and provides a quite compatible outcome in streetscape terms.
Generally, the proposed streetscape presentation is as a pair of contemporary architectural forms with parking which would sit quite harmoniously with the character of built and natural features in the surrounding area, as a new step in the evolution of a pleasant street setting within a heritage conservation area.
[15]
Parking
In the course of the proceedings, there was acceptance on the part of the applicant of a proposal that the garage to Dwelling 1B would be modified such that only a single car parking space would be provided (proposed Condition 22). This redesign would ensure a full width legal parking space was retained along the street frontage. One on-street parking space would be lost. This appears to me to be a reasonable outcome. That is, this site is an unusual wide site with a natural potential for two dwellings (in the course of achieving the zone objective of assisting in meeting house needs). It might be expected that an additional dwelling would bring about the loss of one on-street parking space in association with a driveway crossing. The alternative (to providing a driveway garage space) would be further on-street parking by future residents of any new dwelling.
[16]
Side setbacks
The building side setback controls provide for a 2.8m baseline height at the boundary then a 60 degree inclined plane. The most obvious breach is concerned with Dwelling 1A, towards the front of the site along the northern boundary with 8 Broderick Street. However, the portion in breach essentially involves the sharing of a common wall with the existing built-to-boundary wall within 8 Broderick Street. The second notable breach involves the rear of Dwelling 1B, where there is a built-to-boundary section involving a study and ensuite (especially notable Ex C p 33 Section C). Generally this conforms with an area where the existing building is already built to the boundary. I do not understand these breaches of the envelope controls to bring any unreasonable adverse environmental effects, in part because they attempt to substantially replicate the existing built form, where a breach of the DCP is involved. I find the proposed side setbacks reasonable in the circumstances noting the advice of Ms McCabe that these sorts of breaches reflect those commonly occurring nearby, including next door at 8 Broderick Street and 3 Longview Street (Ex 3 par 289).
[17]
Relationship with foreshore
I note Mr Croft's opinion that the proposal is inconsistent with s 6.28 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (providing points of consideration and satisfaction with respect to development in the Foreshores and Waterways Area) and Control C3 of Part C1.20 of the LDCP (relating to foreshore land). However, I accept the agreed evidence of the town planners that no part of the proposed works occur within the W5 - Water Recreation zone (Ex 3 par 282).
On the broader question of the proposal's relationship with the foreshore, I accept Mr Egan's comment, having regard to Control C21 of Part C2.2.2.6 of LDCP, that the proposal would not retain the façade of the existing building which faces the waterway. However, I am not convinced there is a significant inconsistency with desired future character as a consequence. There are two essential reasons for this.
The first relates to the contextual presentation of the existing built form on the site to the waterway, generally. The presentation of the existing built form to the waterway is generally recessive and is considerably subsumed by existing vegetated screening. That is to say the "balance of landscape to built form" (Control C4) swings to the landscape at present. In addition from the waterway, contextually, the existing built form on the site is considerably backgrounded by its juxtaposition with the nearby development, either side, which involves larger scale massing. This can be noted from Ex 10 (third of the photo sheets) which is a close-up shot from the Birkenhead marina area and provides a reasonable presentation of the closer waterway views.
The second reason I see the proposal as consistent with desired character ambitions is the design schema for the development, noting its compliance with relevant numerical controls under IWLEP and having regard to the proposed additional three trees now proposed (after joint conferencing), which can provide for a comparable balance of landscape to built form to the existing, when viewed from the water. The proposed form respects topography (with massing at the higher land and stronger landscape visual presence to the mid slopes) while largely retaining existing views to the water from other properties. Generally, it is reasonable to think that the proposal would be consistent with the desired future character when viewed from the waterway, and with respect to views to the waterway.
[18]
Whether the proposed dwellings would achieve sufficient solar access
I understood there to be general agreement on the part of Mr Egan and Ms McCabe on the characteristics of solar access availability to proposed dwellings. The concern was that Dwelling 1A would not achieve "a minimum of three (3) hours of direct sunlight to the main living room between 9am and 3pm during the winter solstice", a breach of Control C9 of Part C3.9 of LDCP. The experts agreed that the main living room would instead receive about one hour of sunlight at the winter solstice. Mr Egan thought this an unreasonable outcome for a new dwelling in a newly subdivided lot. Ms McCabe saw the overall amenity available to the dwelling as reasonably compensating for this shortfall.
The objectives to Control C3.9 are as follows:
"O1 Development shall:
a. provide adequate sunlight to main living room and private open space;
b. provide daylight to all habitable rooms;
c. provide a high level of amenity;
d. protect residential amenity for adjoining development;
e. increase energy efficiency; and
f. minimise the degree of overshadowing to neighbouring properties."
The orientation of the block is east-west and the prevailing layout of residences is consistent with this orientation, which is a feature of the street setting. The massing of and overshadowing from 8 Broderick Street to the immediate north prevents achievement of the numerical standard at Control C9 of Part C3.9 of DCP. In this instance, the accessibility of outdoor areas with good solar access at the winter solstice and general amenity available at this waterfront property means that compliance with that particular solar access standard is unnecessary in the circumstances.
[19]
Whether cl 4.6 of IWLEP provides power to grant consent, despite the contravention of cl 6.5
Establishing that cl 6.5 involves a development standard means, only, that the facilitative provisions of cl 4.6 are in play. The relevant jurisdictional preconditions, within cl 4.6, still require positive findings, if its facilitative powers are to be available. In respect to this I note that the applicant has submitted a written request pursuant to cl 4.6(3), for evaluation with respect to the matters at the next two subheadings, below (Ex D Annexure D.
[20]
The written request's demonstration of whether compliance with development standard is unreasonable or unnecessary in the circumstances of the case
The test here is whether the applicant's written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The written request sought to indicate that the objectives of the development standard were achieved, notwithstanding the contravention, a legitimate line of inquiry for this test (mindful of Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 at [42]-[51]).
The objectives of the development standard are indicated at [16]. In relation to the first of these objectives, the written request adequately demonstrates that the development in the foreshore area will not adversely impact on natural foreshore processes by its indication that there would be minimal work at the interface with the mean high water mark and that accordingly natural foreshore processes would be unaffected.
In relation to the second objective of the development standard, the written request seeks to argue that proposed development in the foreshore area will not adversely affect the significance and amenity of the area. The written request adequately prosecutes this argument. There are two aspects here: significance of the area and amenity of the area. The "significance" aspect is essentially concerned with presentation to the waterway and here the written request is effective through demonstration of the correlation between the existing improvements in the foreshore area on the site and that which is proposed. The fact of the similarity of the proposal with the presentation of similar other improvements on nearby sites is also argued effectively to justify that there would be no adverse effect on the significance of the area. The amenity aspect is also effectively argued by demonstrating that no significant amenity effects (including with respect to view impacts, solar access, visual privacy) flow from the proposal.
[21]
The written request's demonstration of whether there are sufficient environmental planning grounds to justify contravening the development standard
The written request argues a number of points to demonstrate sufficient environmental planning grounds to justify contravening the development standard. The first of these points, of itself, demonstrates sufficient environmental planning grounds. This is that the proposed contravention, as an aspect of the overall development proposal, is essentially in character with the existing, generally adjacent, development along the foreshore. That is to say the built form elements in juxtaposition with landscaping and other ancillary development, including contravening elements, is in keeping and compatible with the built form and natural character of the housing which faces the waterway in the site surrounds.
[22]
Whether proposed development will be in the public interest because of consistency with objectives of the development standard and objectives for development within the zone
This test, relating cl 4.6(4)(a)(ii) of IWLEP, requires direct findings of the Court. It is straightforward for me to accept the arguments in the written request to find that the development will be in the public interest because of its consistency with the objectives of the development standard. The zone objectives are reproduced at [6]. The proposal is obviously consistent with the first two zone objectives in that it provides for an additional dwelling to assist in meeting the housing needs of the community, and the form of housing proposed fits into the mix of built forms which would be seen to provide for a variety of housing types and densities.
The third zone objective is not relevant.
The proposal is also consistent with the fourth zone objective. This question of character is a point of closer attention earlier in this judgement when various merits considerations are addressed. But my essential finding is that the proposal maintains the character of built and natural features in the surrounding area given the quite varied existing built and natural character and the proposal's, albeit contemporary, design response to these character features. The form of the proposed two dwellings maintains the character of built features in the surrounding area and the proposed landscaping maintains the character of natural features.
The final aspect of cl 4.6(4) which would normally need to be satisfied is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained (cl 4.6(4)(b)). When a matter is on appeal, the Court is not required to obtain the concurrence of the Secretary, however it should still consider the matters in cl 4.6(5) (see Initial Action v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [29]). I have done so and find that, in this instance, the contravention of the standard does not raise matters of State significance, or see any particular public benefit from maintaining the development standard.
These findings open up the power, under cl 4.6(2) of IWLEP, for consent to be granted for the proposal even though it contravenes the development standard at cl 6.5.
[23]
Whether the required findings of satisfaction can be made with respect to cl 6.5 (4) of IWLEP
Clause 6.5 of IWLEP provides that development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied in respect of a number of listed matters. Below I consider these matters. and, as will be seen, find that I am satisfied with respect to each.
I am satisfied that the proposed development would contribute to achieving the R1 zone objectives because of its provision of additional housing to assist in meeting the community's housing needs.
I am satisfied that the appearance of the proposed development, both within the foreshore area and external to it, would be compatible with the surrounding area for the reasons outlined at [64].
I am satisfied that the proposed development would not cause environmental harm including in relation to pollution or siltation of the Iron Cove waterway, or an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or an adverse effect on drainage patterns. In technical areas of this type it is reasonable to rely on the investigatory material and response strategies accompanying the development application, which was not challenged by Council in its own technical evaluation in response.
I am satisfied that the proposed development would not cause congestion of, or generate conflicts between, people using open space areas or the waterway because it is not proximate to any open space areas and the scale of the development and future occupation of the dwellings is not of sufficient size to generate congestion or conflicts on the waterway.
I am satisfied that the proposed development does not compromise opportunities to provide continuous public access along the foreshore and to the waterway because none are available in this immediate site vicinity at present.
I am satisfied that the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land would be maintained. This query goes particular to the question of heritage conservation and as found at [40], the heritage significance of the Iron Cove HCA would be maintained notwithstanding the proposed demolition of the existing building on the site.
I am satisfied that the development would not have an adverse impact on the amenity or aesthetic appearance of the foreshore, for the reasons outlined at [64].
I have considered sea level rise and change of flooding patterns as a result of climate change but see these as not significant in this instance given the elevation of the development, generally, above the water level.
[24]
Owner's consent contention
Council contended that the proposal involved development on adjoining land to the immediate south (Part Lot 1 DP 198343), for which there is no owner's consent. The applicant disagreed and made clear in its amending plans, that the areas in question were to be "no development areas" (Ex C p 36 among others). But, as will be explained, there is more to it than that.
Part Lot 1 DP 198343 is a triangular slither of land that lies between the site and the southern neighbour (3 Longview Street). It seems to be a maximum of about 300mm in width at the site's south-western corner and coincides with the shared boundary at the street front. The historical subdivision of land in the site vicinity has resulted in this kind of residue allotment. A small portion of the existing building which occupies the site also occupies this slither of land. While the DA plans show no development on Part Lot 1 DP 198343, and that the proposed development would be inside and abutting the slither, there would seem to at least remain a construction uncertainty as to how the proposed development (otherwise on the site and involving demolition works) would physically interface with the portion of the existing building located on Part Lot 1 DP 198343.
There is very considerable uncertainty as to ownership of Part Lot 1 DP 198343. The applicant has commenced processes to create possessory title for the small parcel. The adjoining owners have provided a statutory declaration stating agreement to possessory application of the sliver by the applicant (Applicant's Bundle filed 2 October 2024 - pages 7-9) and other approval processes have also commenced. The applicant's submission was that there "is nothing underlying the statutory purpose of the requirement for owner's consent that should give rise to a concern of the Court that there is an absent affected person" (Applicant's written submissions provided to the Court on 4 October 2024 (AWS) p 5).
Council submits that these steps should have been concluded prior to the proceedings and as things stood the Court could not be satisfied that there will not be development on Part Lot 1 DP 198343; and without owners' consent, the Court had no power to grant development consent.
The applicant submitted that while it would have been preferable to have secured owner's consent with respect to Part Lot 1 DP 198343, caselaw was in favour of the applicant's position, which essentially involved adoption of a consent condition as follows:
"Works Outside the Property Boundary
5 Prior to any works, the person acting on this consent must demonstrate to the satisfaction of Council that:
1. The person acting on this consent has ownership of or an interest in Part Lot 1 DP 198343 to allow for demolition of any encroaching structure; and
2.. Development consent has been granted for demolition of any structures on Part Lot 1 DP 198343."
Council's without prejudice version of the condition would simply put that:
"This development consent does not authorise works outside the property boundaries on adjoining land."
[25]
Acceptance of applicant's position
I accept the applicant's position with respect to this matter. As put in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at [8]:
"[8]…When a development application is made for consent to a specified development, the land to which the application "relates" must therefore be the land on which the specified development is proposed to be carried out.
…
[10] As the opening words of [then] s 90(1) [of the EPA Act] state, it is only the development which is the subject of the development application that the consent authority is considering, but the relationship of that development to development on adjoining land is a relevant factor for consideration."
The application before me does not include any development on Part Lot 1 DP 198343, therefore no owner's consent is required. Nonetheless, the relationship with development on this lot is a relevant factor for consideration. Further I am mindful of the Court's obligation to consider likely impacts, not the subject of the application, a matter considered by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake) at [18]:
"… the fact that works, which are likely to impact on the environment, are not the subject of the development application is not dispositive of the question of whether the likely impacts of the works need to be considered in the determination of the development application. The likely impacts of the works can be considered to be likely impacts of the development the subject of the development application where there is a real and sufficient connection between the works and their impacts and the proposed development."
It is reasonable to consider the implications of the proposed development on the portion of the existing building occupying Part Lot 1 DP 198343. While Council's approach would have similar effect, I prefer the approach adopted by the applicant which gives more direct recognition of the concern at hand and the means of managing potential impact.
[26]
Building line covenant
The figures above (from [18]) indicate the location of a building line enforceable by covenant registered on the title of the site. This building line is located near to, but west of, what I call the foreshore building line under IWLEP (a matter considered in detail in this judgement). Council submits that the provisions of cl 1.9A of IWLEP, relating to the suspension of such covenants for the enabling of certain development, do not apply under cl 1.9(2)(a), because the covenant was imposed by Council. Council took me to Rothwell Boys Pty Ltd v Coffs Harbour City Council (2012) 186 LGERA 366, at [37], from which it can be concluded that the grant of a development consent does not impact upon proprietary rights.
The applicant referenced Chehab v City of Canada Bay Council [2002] NSWLEC 220 (Chehab), which for me indicated that consideration could be given to such covenants in the evaluation of development applications. But that the weight to be attached, including whether "proper genuine and realistic consideration" or "significant weight", was a matter for the circumstances of the case: Chehab at [37]-[38]. It was also found that s 39(2) of the Land and Environment Court Act 1979 permits the Court "to release, vary or modify the instrument where the enforceability of the instrument is expressly preserved by an Environmental Planning Instrument": Chehab at [33].
I do not understand the applicant to have sought, not in these proceedings at least, for there to be a suspension or lifting of the covenant and I make no findings to that effect. As such I do note that the building line covenant remains in effect and the proposed development would be contrary to it. Council argues that it follows that the grant of consent lacks utility. It seems to me this remains to be seen. In saying this, I am not persuaded that the existence of the covenant brings any substantive weight against the proposal. My findings in regard to the IWLEP foreshore building line and the fact of existing building works inside the covenant line are of some relevance to me here (Chehab at [38]). Further decisions are required before it is to be found one way or another, whether the parties to the covenant wish to enforce or suspend its effect. I need look no further into it here.
[27]
Other issues
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires consideration of whether land is contaminated. I note that a preliminary site investigation (PSI) has been undertaken (Annexure A Condition 3 p 3). The PSI did not find anything to suggest other than previous residential use of the site, with industrial land uses located further to the north. Recommendations are made with respect to future actions which are incorporated in consent conditions. The requirements of s 4.6 have been met.
My attention has been drawn to the objecting submissions relating to the proposal, and these have been considered. However, nothing arises there which would affect the above findings.
I note that the consent conditions were otherwise generally agreed, although I note that following my findings on the merits, I reject Council's proposed condition 27 which would otherwise require a substantial redesign of the proposal.
[28]
Conclusion
I have already made findings that there is power to grant consent to the proposal under cl 4.6 of IWLEP. In accord with the above merits analysis, I am also satisfied that the proposal is satisfactory on its merits. The proposal warrants the grant of consent with conditions otherwise as generally agreed between the parties.
[29]
Orders
The Court orders:
1. The appeal is upheld.
2. DA/2023/0912 for demolition of the existing buildings, Torrens Title subdivision of one lot into two lots, construction of a new part two/part three storey dwelling, swimming pool, tree removal, and associated landscaping on each lot, at 1 Longview Street, Balmain NSW 2041 (Lot 51 of DP1287894), is determined by the grant of consent subject to the conditions set out in Annexure A.
3. All exhibits are returned with the exception of Exhibits B, C, D and 1, which are retained.
[30]
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Decision last updated: 28 November 2024