Alsuzman v Marrickville Council

[2005] NSWLEC 425

Land and Environment Court

of New South Wales

CITATION:

Alsuzman v Marrickville Council [2005] NSWLEC 425

PARTIES:

Applicant:
Alsuzman Pty Ltd and Jag 888 Pty Ltd

Respondent:
Marrickville Council

FILE NUMBER(S):

11630 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- whether retention of old building adequate

DATES OF HEARING:

20/07/2005

 
DATE OF JUDGMENT: 

08/09/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr I Hemmings, barrister instructed by Mr D Briggs of Damien Briggs & Co

Respondent:
Mr A Galasso, barrister, instructed by Mr G Christmas, solicitor of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

9 August 2005

11630 of 2004 Alsuzman Pty Ltd and Jag 888 Pty Ltd v Marrickville Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Marrickville Council (the council) of a development application to demolish part of the existing house, refurbish it and erect a residential flat building containing six dwellings on lot 2 DP 580964, known as 3 Anderton Street, Marrickville.

The site

2 The site is on the eastern side of Anderton Street, between Hastings Street and Marrickville Road. It has a frontage of 21.5m, a depth of 48m and an area of 1,049m2. A single-storey Federation-style house now occupies the site, with gardens behind. There are a number of mature trees.

3 The adjoining house to the south is 1 Anderton Street. It has a similar appearance to the house on the subject site. To the north is a right-of-way, and beyond it a single-storey house, 5 Anderton Street. On the other side of Anderton Street there are mainly single-storey houses interspersed with apartment buildings.

The proposal

4 The applicant proposes to retain the main part of the house, demolish several rooms towards the rear, and refurbish it. It proposes to construct a two-storey building, containing six dwellings, attached to the rear of the retained building. Basement parking is proposed for nine cars, accessible from a driveway near the south boundary.

5 The applicant lodged the development application in July 2004. Following notification, the council received 23 submissions. The applicant lodged amended plans in October 2003. Following re-notification, the council received nine submissions. The applicant further revised the proposal and submitted amended plans in November 2004. The council received a report from its planning staff recommending approval in December 2004. The council did not accept the recommendation and refused the application in February 2005. The applicant lodged the appeal in December 2004 against deemed refusal.

Relevant planning controls

6 The Marrickville Local Environmental Plan 2001 (LEP 2001) zones the site 2(B), a zone that permits multi-unit housing development.

7 Development Control Plan 35 – Urban Housing Volume II (DCP 35) establishes detailed requirements for multi-unit housing. The DCP establishes a maximum FSR of 0.7:1 (with which the proposal complies) and a minimum landscaped area of 45% (with which the proposal does not comply).

The issues

8 The council submitted a Statement of Issues containing eight issues. At the beginning of the hearing, however, the council’s advocate, Mr a Galasso, submitted that the main issues were the following:

· Does the proposal retain a sufficient part of the existing building?

· Is the separation between the old and new adequate?

· Is the shortfall in the landscaped area justified?

9 I assume therefore that the council no longer questioned the height, setbacks and internal amenity noted in the Statement of Issues.

The objectors’ concerns

10 The Court heard the evidence of Mr G Sharp, who lives at 1 Anderton Street, adjoining the site to the south. He spoke mainly about the history of the existing house and its previous occupants. Mr P Herring, who lives at 18 Anderton Street, considered that the proposal was too big for the character of the area. He endorsed the council’s concerns, namely the inadequate retention of the existing building and the lack of open space.

Retention of existing building

11 The existing house is not a heritage item. It is a nice old house worth retaining both for its own sake and for that of the streetscape. There was some dispute between the parties whether the street was in a conservation area, a draft conversation area (whatever that means) or just a residential street with a pleasant old character. For the benefit of this case I shall assume that the proposal should be assessed as if it were in a conservation area.

12 The Court-appointed expert on heritage was Mr R Staas, an architect. The council’s expert was Ms R Hedditch, the council’s heritage and urban design advisor. In my opinion, the difference between them was minor. They agreed that the clerestory room to the rear should be retained. Ms Hedditch sought also the retention of the kitchen, bathroom and a small additional room around the clerestory room.

13 I do not think it would be reasonable to require the retention of the additional rooms. Retaining them would significantly reduce the amenity of the house for contemporary living. The bathroom and kitchen are not original and would in any case have to be replaced. In my opinion, the extent of retention is acceptable.

Separation between old and new

14 Both heritage experts agreed that the new building should be visually separated from the old. The dispute focused only on how much visual separation was enough. In Mr Staas’ opinion, the indentation between new and old and the separation of the roof forms was sufficient. Ms Hedditch sought more visual separation, possibly a complete break between the existing house and the new building.

15 I accept that visual separation is desirable and the more of it one can design into the proposal, the better. However, if the separation were physical rather than visual, ie if there were open space between the existing and new building forms, the opportunity for developing the rest of the site would be significantly reduced. Moreover, even with a break between the old building and the new, from certain angles from the street, they would appear continuous. I accept Mr Staas’ opinion that indentation, change in roof form and change in materials provide sufficient visual separation.

Landscaped area

16 DCP 35 requires 45% of the site to be landscaped area. For this site the requirement means 472m2. The application provides only 374m2, which is only 36%.

17 The Court-appointed expert on planning, Mr T Byrnes, accepted the shortfall on the grounds that the proposal retains and transplants several existing trees and is generally well landscaped. The applicant’s advocate, Mr I Hemmings, justified it on the basis that the retention of the existing single-storey building resulted in a larger footprint than would have been the case if the proposal comprised only two-storey buildings. In my opinion, both justifications have some validity, but they are also somewhat forced. It would be better if the proposal provided the landscaped area required in DCP 35. The question for the Court is whether the shortfall in landscaped area in this case is sufficient reason to refuse of the application.

18 In my opinion, the overall proposal, particularly the retention of the existing dwelling including the clerestory room, has sufficient merit to balance the negative feature of a shortfall in landscaped area. While the reduced landscaped area will have some effect on the character of the area, the major contribution of the proposal to the streetscape is the retained Federation-style house.

19 The Court’s acceptance in this case of a reduced landscaped area should not be taken as a precedent for other applications in which the non-compliance may not be balanced by positives.

20 For the above reasons the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to demolish part of the existing house and erect a residential flat building containing six dwellings on lot 2 DP 580964, known as 3 Anderton Street, Marrickville is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except 6, A, D and E.

_______________
Dr John Roseth
Senior Commissioner