Alexiou v Inner West Council

[2017] NSWLEC 1372

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Alexiou v Inner West Council [2017] NSWLEC 1372
Hearing dates:	26 June 2017
Date of orders:	19 July 2017
Decision date:	19 July 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: 1. The appeal is upheld; 2. Consent is granted to Development Application No. 201600112 for the construction of a loft bedroom on top of the approved garages on each allotment at Lot 40 and 41, DP 2915, 21 Lincoln Street Stanmore, subject to conditions in Annexure A; 3. The exhibits are returned with the exception of Exhibit 1, B and C.
Catchwords:	DEVELOPMENT APPEAL: against refusal of the addition of loft bedrooms above approved garages – bulk and scale – impacts on adjoining residents – impacts on heritage conservation area - amended development acceptable.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399
Category:	Principal judgment
Parties:	Mr Andrew Alexiou (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr M Fraser (Applicant) Mr S Turner, Inner West Council (Respondent)   Solicitors: Kioussis Lawyers (Applicant)
File Number(s):	2016/00353151
Publication restriction:	No

Judgment

1. COMMISSIONER: the development application that is the subject of this appeal seeks to construct a loft bedroom on top of the approved garages, at 21 Lincoln Street Stanmore. Council refused the application on 1 August 2016, and the applicant seeks for the Court to overturn the decision of the Council, and approve the development.

2. The appeal was subject to mandatory conciliation (34A of the Land and Environment Court Act1979 "LEC Act") however agreement was not reached and conciliation was terminated. The proceedings were dealt with as hearing.

3. In response to the Councils contentions, and the submissions of the residents, the following amendments were made to the proposal prior to the commencement of the appeal:

1. The levels of the garages were split and realigned to respond to the slope and topography of the site;

2. The level of the attic was amended to provide a lower ceiling height;

3. The roof design was changed from a mansard roof form, to a hip roof, and the pitch of the roof was reduced. The preceding amendments have the overall effect of lowering the height of the development; and

4. The materials proposed were amended to better respond to the context of the development.

These changes are incorporated in an updated set of architectural plans that the Court has allowed the applicant to rely on.

4. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

The site and its context

5. The subject site is situated on the eastern Side of Lincoln Street, between Salisbury Road and Rosevear Road, and comprises two allotments legally defined as Lot 40 and 41 in Deposited Plan 2915.

6. The allotment is rectangular in shape and has dual frontage with the street address to Lincoln Street, and a secondary frontage to Lincoln Lane. The site has a site area of approximately 334.5sqm.

7. The site has the following recent approval for development, and construction has commenced.

DA201500038 – approved the subdivision of the land into 2 Torrens Title allotments, demolish part of the premises and convert the dwelling house into 2 dwelling houses with detached garage and first floor studio at the rear of each allotment.

Consent was granted subject to deferred commencement conditions including a condition to delete the pitched roof over the garage at the rear of each allotment and replace it with a flat roof structure of a maximum height of 2.7 metres.

8. The surrounding streetscape in Lincoln Street and Lincoln Lane consist predominantly of single storey and two storey-detached dwelling houses.

9. The Site and immediate locality are within the Heritage Conservation Area (HCA) C7 – Kingston West.

Planning Controls:

10. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

11. The key statutory controls relevant to the application are as follows:

Marrickville Local Environmental Plan 2011 (LEP 2011), with the relevant clauses:

1. Clause 2.3: Zone Objectives and Land use Table;

2. Clause 4.3: Height;

3. Clause 4.4: Floor Space Ratio (FSR);

4. Clause 5.9: Preservation of Trees;

5. Clause 5.10: Heritage Conservation;

6. Clause 6.5: Development in areas subject to Aircraft Noise.

The site is zoned R2 Low Density Residential and the development is permissible, with consent, in the zone.

12. The planning experts agree that the amended application no longer relies on a variation to the FSR control.

13. Given the site is mapped within the heritage conservation area C7- Kingston West, cl. 5.10 Heritage conservation applies and is a precondition to consent. The objectives of cl 5.10 of LEP 2011, ‘Heritage Conservation’ at sub-cl (1), are to conserve the environmental heritage of the Marrickville area and the heritage significance of heritage conservation areas, including associated fabric, setting and views.  The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).

14. The Council no longer contends that the proposal has a negative impact on the heritage conservation that warrants refusal of the application, but raises the consideration of heritage as part of the merit assessment of the developments context. The experts agree that c5.10(4) is satisfied.

15. The Marrickville Development Control Plan 2011 (DCP 2011) applies to the development. The relevant parts of DCP 2011 are:

1. Part 2.1: Urban Design

2. Part 2.3: Site and Context Analysis

3. Part 2.6: Visual and Acoustic Privacy;

4. Part 2.7: Solar Access and Overshadowing;

5. Part 2.10: Parking;

6. Part 2.18: Landscaping and Open Spaces;

7. Part 2.20: Tree Management;

8. Part 4.1.4: Good Urban Design Practice;

9. Part 4.1.6.2: Building Setbacks;

10. Part 4.1.7.5: Loft Structures over Garages:

11. Part 8: Heritage; and

12. Part 9: Strategic Context.

Public submissions

16. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the Marrickville Development Control Plan 2011 (DCP 2011). These submissions raise the following issues:

1. Visual bulk and scale;

2. Overshadowing of neighbouring properties;

3. The precedent effect of the approval of the application;

4. The potential for the studios to have a future use as a secondary dwelling;

5. Impact on trees; and

6. The impact of the development on the streetscape of the laneway.

These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

17. The Court heard expert evidence from Mr Peter Lonergan (Architect) for the applicant and Mr Dimitri Gotsis (Planner) for the Council. The experts participated in a joint conferencing process and produced a joint expert report that was tendered in the proceedings as Exhibit 3.

Issues:

18. Council maintains that the application should be refused on the following grounds:

1. The studios, as proposed, are of an unacceptable design, and represents an overdevelopment of the site;

2. The development is excessive in bulk and scale; and

3. Approval of the development will set an undesirable precedent.

Consideration:

19. It is the evidence of Mr Lonergan that the rear lane (Lincoln Lane), in its current form does not contribute positively to the significance of the heritage conservation area (HCA) due to its inconsistent built form and current poor level of presentation.

20. Alternatively, Mr Gotsis’ evidence is that the rear lane and adjoining buildings contribute to the setting of the HCA. It is his view that the siting and bulk and scale of outbuildings and structures are viewed from the laneway in the context of existing properties and dwelling houses within the HCA which has collective heritage significance (Exhibit 3). In oral evidence Mr Gotsis’ accepted that his objection to the development arises from its streetscape impacts, rather than an impact on the significance of the heritage precinct.

21. Mr Gotsis’ concludes the development, as proposed, will detract from the laneway streetscape due to its unreasonable bulk and scale. It is his evidence that the development will be excessive in comparison to other structures in the laneway, which he concludes are typically single storey and of minimal bulk.

22. The core of Mr Gotsis’ argument is that the amended design has not reduced the bulk and scale to the extent that the proposal will be viewed as a single storey structure from the laneway and adjoining properties and will instead be seen as a two storey structure of excessive bulk and disproportionate scale (Exhibit 3).

23. In contrast, the evidence of Mr Lonergan is that the design will present two clearly defined single storey buildings with studio rooms embedded within a roof space. It is his conclusion that the amended design responds appropriately to the contours and topography of the site and the laneway (Exhibit 3).

24. The experts agree that the development no longer relies on a numerical variation to the floor space ratio control. Council contends that compliance with the controls does not automatically render the development acceptable, and that the development must address the objectives and the broader range of merit considerations.

25. Relevantly Clause 4.4 of LEP 2011 has the following objectives:

(a) to establish the maximum floor space ratio,

(b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,

(c) to minimise adverse environmental impacts on adjoining properties and the public domain.

Council contends that the development does not satisfy (c) due to the solar amenity impact on adjoining properties and the streetscape impacts outlined by Mr Gotsis.

26. The experts agree that the amended design will maintain a reasonable level of solar access to the rear open space of 23 Lincoln Street in mid-winter as follows:

We agree that the rear open space of 23 Lincoln Street currently receives approximately 2 hours of solar access between 9.00am and 3:00pm in mid-winter and agree that although there is a minor increased shadow impact, the amended design maintains a minimum of 2 hours of solar access to the rear open space of 23 Lincoln Street in mid-winter (Exhibit 3).

27. The experts have also assessed the solar access to the dwellings on the subject property. They conclude:

We also agree that the S34-B Issue amended design drawings sufficiently demonstrate that the amended design will not result in any loss to the amount of direct sunlight to the ground floor living room of both allotments on site (Exhibit 3).

28. It is the evidence of Mr Gotsis’ that the development does not satisfy objective (c) as it has a detrimental impact on the public domain as per his evidence at [par. 20- 22]. In addition to these statements it is the evidence of Mr Gotsis that when viewed from the laneway, the development will be out of character, of excessive bulk and (of) disproportionate scale in the context of the existing single storey development abutting Lincoln Lane, and that the amended proposal will result in adverse visual bulk impacts when viewed from the laneway and adjoining properties (Exhibit 3).

29. It is the evidence of Mr Lonergan that the design and articulation of the proposed addition is appropriate for a laneway which is undergoing transformation. It is his evidence that the development is in the public interest as it:

• Improves the public presentation of the laneway;

• Provides a diversity of in the use of the laneway, rather than it being solely for the purpose of garages;

• Has been demonstrated that adequate solar amenity has been maintained to the subject site, and 23 Lincoln Street; and

• The provision of loft bedrooms adds to the diversity of built and housing forms.

(Exhibit 3)

30. It is the submission of Mr Fraser that despite Council’s subjective opinion that the proposal is too large, the development is fully compliant with Council’s numerical controls. He argues that the additional floor space provided by the floor space control has been located in the most appropriate portion on the site, with the benefit of activating the laneway. It is his submission that the applicant has chosen this location as it has a reduced impact in comparison with other locations within the site. .

31. Further Mr Fraser argues this approach to encouraging development at the rear of the site, is reflective of councils heritage development control. It is his submission that these controls seek to maintain the important street frontage (Lincoln Street) intact, and allow more contemporary design behind the principal heritage frontage.

32. Mr Fraser argues in its deliberations the Court should give weight to the LEP and its controls [BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399 per McClellan CJ at [117]. In doing so he submits that the Court should conclude the requirements of these controls are met, and the development is of a bulk and scale that is compatible with the other rear lane structures or houses in the locality.

33. In the alternative, Mr Turner submits that Council’s floor space standards aim to facilitate acceptable bulk and scale of development that maintains a satisfactory relationship with adjoining development, and the wider streetscape context. He argues that compliance with the height and FSR standard does not automatically guarantee an application will be approved. He argues that the Court should accept the evidence of Mr Gotsis that given the lack of two-storey structures adjoining a laneway, with the exception of an out building was constructed over 80 years ago, the development is not an appropriate response to the single story development characteristic of the laneway.

34. Mr Turner argues that the relevant provisions of DCP 2011 are a mandatory consideration s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. It is Mr Turner’s submission that having regard to the Council’s planning controls, the evidence provided and the character of development adjoining the laneway in which the site is located, the evidence of Mr Gotsis should be preferred and that flexibility should not be provided.

35. Council maintains that the proposed development is not an appropriate response to the character of development adjoining the laneway and will have an adverse visual impact on. Mr Turner concludes that there is no evidence of similar bulk and scale structures, and that the proposed development is an inappropriate response to the established character of development adjoining the laneway. He argues therefore the proposed development is inconsistent with the objectives of Council’s planning controls and should not be allowed.

Findings:

36. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage conservation area, based on the evidence before the Court and the site view, I am satisfied that the effect of the proposed development on the significance of the conservation area is acceptable.

37. I accept the submission of Mr Fraser that in assessing the merits of the Proposal under s 79C of the Act, the Court must consider the expert and lay evidence and give appropriate weight to the permissibility to carry out the use on the land: BGP Properties Pty Ltd v Macquarie City Council. .

38. It is agreed between the experts that the development satisfies the numeric requirements of the LEP. I accept Mr Turner’s submission that the intent of the floor space ratio control is to aim to facilitate acceptable bulk and scale of development that maintains a satisfactory relationship with adjoining development, and the wider streetscape context. The consideration in this matter is not whether the development is either single or two storeys, but rather whether the form of development and any impacts from it are acceptable. For the following reasons I accept the conclusions of Mr Lonergan that the development meets the objectives of the Council’s controls

1. I am satisfied that a more desirable urban streetscape will arise from the activation of the laneway with a diversity of uses;

2. I find that the immediate context of the development incorporates dwellings and outbuildings of a scale that is not predominately single Storey. It is this broader context that is referred to in both the LEP and DCP controls;

3. I am satisfied that the site design and the amended plans minimise the adverse impacts on adjoining properties.

39. DCP 2011 at clause 4.1.7.5 provides parameters which need to be satisfied that the provision of loft structures over garages to be acceptable. The requirements are as follows:

(i) compliance with height, FSR, landscaping, and parking requirements of this DCP and MLEP 2011;

(ii) there being minimal adverse impact on amenity of the subject property, neighbouring properties and the public domain;

(iii) the bulk and scale of the overall structure not being dominant compared with other rear Lane structures or houses in the locality, and

(iv) the structure not adversely affecting the character of the street.

40. On the basis of the evidence I am satisfied these requirements of DCP 2011 are met and that the development warrants approval.

41. In undertaking my assessment I have given consideration to the submission from adjoining residents. I am satisfied that the reduction in overall height in the development, through the amended plans, provides a balanced outcome for the site. I accept the evidence of the experts that the overshadowing of the neighbouring property to the south is reasonable. I am satisfied that the conditions address adequately the management of any construction impacts on existing trees [condition 32] and require additional landscaping to be provided [condition 31]. Importantly during the proceedings the applicant amended the development sought and no longer seeks the separate leasing or occupation of the loft space. In response to submissions from the public, pursuant to s79C(1)(e) of the Act, I am satisfied it is appropriate to apply the following condition proposed by the Council:

The premises on each allotment must be used exclusively as a single dwelling-house and not be adapted for use as a dual occupancy, residential flat building, backpackers’ hostel or boarding house and must not be used for any industrial or commercial purpose.

Reason: To ensure that the premises on each allotment are used exclusively as a single dwelling house.

42. For the reasons set out in the judgment, after considering the relevant matters under s79C(1) of the Act, the amended plans, the expert report, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders:

43. The orders of the Court are:

1. The appeal is upheld;

2. Consent is granted to Development Application No. 201600112 for the construction of a loft bedroom on top of the approved garages on each allotment at Lot 40 and 41, DP 2915, 21 Lincoln Street Stanmore, subject to conditions in Annexure A;

3. The exhibits are returned with the exception of Exhibit 1, B and C

…………….

D M Dickson

Commissioner of the Court

353151.16 Dickson (C) (261 KB, pdf)

Amendments

19 July 2017 - Correction to Legal Rep name in para. 34 & 35

Decision last updated: 19 July 2017