74B Trafalgar Street Pty Limited v Leichhardt Council
[2010] NSWLEC 1358
•16 November 2010
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
74B Trafalgar Street Pty Limited v Leichhardt Council [2010] NSWLEC 1358
PARTIES:
APPLICANT
74B Trafalgar Street Pty Limited
RESPONDENT
Leichhardt Council
FILE NUMBER(S):
10445 of 2010
CATCHWORDS:
DEVELOPMENT APPLICATION :- consruction of two attached dwellings and subdivision
whether roof form minimises overshadowing and is consistent with desired future character.
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy no 1 – Development Standards
Leichhardt Local Environmental Plan 2000
CORAM:
Tuor C
DATES OF HEARING:
9 & 15 November 2010
EX TEMPORE DATE:
16 November 2010
LEGAL REPRESENTATIVES
APPLICANT
Mr P Rigg, solicitor
of Norton Rose Australia
RESPONDENT
MS J Walsh, solicitor
of Pikes Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
16 November 2010
10445 of 2010 74B Trafalgar Street Pty Ltd v Leichhardt Council
This determination was given extemporaneously
and has been edited prior to publicationJUDGMENT
This is an appeal against the refusal by Leichhardt Council (council) of a development application (D2009/474) under the Environmental Planning and Assessment Act 1979 for remediation of the site, demolition of existing buildings and construction of two new dwellings with Torrens Title subdivision at 74B Trafalgar Street, Annandale (the site).
The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions.
The original application proposed a hip roof which extended the length of the proposed building. Leave was granted for the application to be amended to reduce the pitch of the main roof to thirty degrees with a half hip element, provide a separate front verandah roof and rear skillion roof and lower the floors of both levels by 200mm.
Evidence
The Court visited the site and heard evidence from the adjoining owner at 3 Collins Street. Her principal concern is the loss of solar access to her rear north facing window.
The adjoining owner at 3A Collins Street was also concerned about solar access and raised issues about the heritage significance of the existing building and the bulk and privacy impact of the proposal on the garden area of 3A Collins Street. These matters were not raised as issues by council as there will be no material impacts from overshadowing, bulk or privacy on 3A Collins Street.
The Court heard expert planning evidence from Ms D Laidlaw, for the council, and Mr A Rowan for the applicant. Mr R Staas, for the council, and Mr J Phillips, for the applicant, prepared a joint report on heritage issues for the original application and suggested alternative options but were not required for cross examination.
The key issue between the parties is the loss of solar access to 3 Collins Street and whether this should be minimised by an alternate roof form.
Ms Laidlaw's position is that the proposal does not comply with the floor space ratio control (FSR) in cl 19(2) of Leichhardt Local Environmental Plan 2000 (LEP 2000) or the side setback control in Part B1.2 of Leichhardt Development Control Plan 2000 (DCP 2000). Although the overshadowing does not result directly from these non compliances, Ms Laidlaw considers that to achieve the objectives of these controls, the overshadowing should be minimised by a skillion roof behind a parapet.
Mr Rowan considers the half hip form, now proposed, to be acceptable and that the overshadowing impacts are minimised given the nature of the room affected (a closed-in verandah used as a living area) and the amount of glazing to the window that will retain solar access.
Further, Mr Rowan considers the half hip roof form is consistent with the desired further character for the Trafalgar Street Distinctive Neighbourhood in DCP 2000.
Both planners agree that the proposal will comply with the overshadowing provisions of Part B3.1 of DCP 2000. They agree that the north facing window of 3 Collins Street will receive sunlight over more than fifty per cent of the surface area for about four hours (9.40am (56.9%) to 1.35pm (53.2%)) in mid-winter. Between 9am and 9.40am in mid-winter the window would receive more solar access with the parapet scheme than from the proposal.
Mr Staas and Mr Phillips agree that the roof form should be consistent with Victorian and Edwardian roof lines in the area. They agree that either a hipped roof, a skillion behind a parapet or a small half hip on any pitched roof are acceptable. They note that the presentation from Collins Street of the parapet would not be as acceptable as a gabled roof form.
Findings
The objectives for housing in cl 17 of LEP 2000 include:
(a) to provide development standards to ensure that density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and take account of the site controls in the Leichhardt Development Control Plan 2000 to achieve the desired future character.
The Desired Future Character for Trafalgar Street - urban form- in DCP 2000 includes:
promote the consistent rhythm within the streetscape created by the regular allotment sizes, predominance of detached and semi detached dwellings and prevalence of hipped and gabled roof forms.
There are examples of parapet roof forms in the street and the heritage experts raise no objection to this roof form. However, the prevalent roof form is hipped and gabled and the proposal is consistent with the desired future character sought by DCP 2000.
The question is, therefore, whether the solar access benefits to be achieved by the alternative parapet roof form are so significant as to warrant the departure from what is sought for the desired future character in DCP 2000.
The proposal complies with the requirements for solar access in Part B3.1 of DCP 2000 as it provides solar access to the rear windows of 3 Collins Street for more than four hours in mid winter.
The parapet scheme will provide solar access to the window between 9am and 9.40am. However, I do not accept that the benefit provided to one window for a limited period is such as to require this alternate roof form.
The objectives of the overshadowing control are to:
Minimise overshadowing of the habitable rooms and private open space of existing houses.
The changes made between the original application and the proposal now before the Court have minimised overshadowing to a reasonable level given the other controls in DCP 2000.
The proposal complies with the building envelope control in Part B1.2 of DCP 2000 which specifies a wall height of 6 metres and a roof control comprising an inclined plane of 45 degrees measured from the top of the wall height. The proposal has a roof pitch of 30 degrees and is within this envelope control.
The proposal does not comply with the numerical side set back controls in Part B1.2 of DCP 2000 but meets the other aspects of the control which seek to ensure that:
development is sympathetic to and respects the rhythm of the streetscape created by the lot width and side set backs of adjoining development.
The proposed side set back is consistent with the set backs of buildings in the street and council did not seek to increase the side set back other than by the reduction in the overall height through the parapet roof.
The proposal exceeds the FSR in cl 19(2) of LEP 2000 but no issues were raised with those parts of the building that are included as FSR. The roof is not included as FSR and I accept Mr Rowan's evidence that the proposal it is of acceptable bulk and form within the streetscape and meets the objectives for the FSR control. The objection under State Environmental Planning Policy no 1 – Development Standards is therefore well founded and the application warrants approval.
Orders
(1) The appeal is upheld.
(2) The development application (D 2009/474) for remediation of the site, demolition of existing buildings and construction of two new dwellings with Torrens Title subdivision at 74B Trafalgar Street, Annandale, is approved subject to the conditions in Annexure A.
(3) The exhibits, except Exhibits J, 5 and 7, may be returned.
__________________
Annelise Tuor
Commissioner of the Court
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