Atkins v Leichhardt Council

[2012] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:

Atkins v Leichhardt Council [2012] NSWLEC 1363

Hearing dates:

14 December 2012

Decision date:

14 December 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2.The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2011/586) for alterations and additions to an existing dwelling at 15 St Andrews Street, Balmain, is refused.

3.The exhibits, except Exhibits 1 and A, may be returned.

Catchwords:

DEVELOPMENT CONSENT - modify development. Impact on heritage significance of heritage conservation area. Compliance with side setback.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Leichhardt Local Environmental Plan 2000

Category:

Principal judgment

Parties:

Mr Ryan Atkins (Applicant)

Leichhardt Council (Respondent)

Representation:

Mr D Briggs, solicitor (Applicant)

Ms J Walsh, solicitor (Respondent)
DG Briggs and Associates (Applicant)

Pikes and Verekers Lawyers (Respondent)

File Number(s):

11094 of 2012

Judgment

This determination was given extemporaneously and has been edited prior to publication

1. COMMISSIONER: This is an appeal against the refusal by Leichhardt Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent D/2011/586 for alterations and additions to an existing dwelling at 15 St Andrews Street, Balmain (site).

1. The s 96 application seeks approval for a first floor addition within the side setback area of the existing dwelling. The addition will enlarge the ensuite and bathroom approved under the development consent.

1. The key issue in dispute between the parties is whether the proposal will reduce the contribution of the dwelling to the heritage conservation area and impact on its significance.

1. The site, its locality and the background to the proposal are in the Statement of Facts and Contentions, filed by the council, and the Statement of Facts and Contentions in Reply, filed by the applicant.

Planning Controls

1. The site is within the Residential Zone under Leichhardt Local Environmental Plan 2000 (LEP). The proposal is permissible with consent. It is within the Balmain Heritage Conservation Area (HCA) and within the vicinity of heritage items, including 14 St Andrews Street, which is opposite the site. The provisions of cl 16(7) and (8) of the LEP require a consideration of the effect of the proposed development on the significance of heritage items in the vicinity and on the HCA.

1. Leichhardt Development Control Plan2000 (DCP) applies to the development. The site is located within the Campbell Street Hill Area of the Mort Bay Distinctive Neighbourhood. Part A10.6.6 of the DCP describes the Existing Character and the Desired Future Character of the Neighbourhood and includes Neighbourhood Controls to achieve the Desired Future Character. Part B of the DCP applies to residential development. Part B1.2 includes Side Setback Guidelines and Controls, including minimum side setbacks, which increase as the height of the building increases.

1. The controls allow buildings to be constructed to side boundaries where:

• The pattern and development is not compromised;
• Higher proportions of buildings are set back in accordance with the above control;
• The bulk and scale of development is minimised by reduced floor to ceiling heights;
• The potential impacts on amenity of adjoining properties in terms of sunlight and privacy and bulk scale, are minimised;
• Reasonable access is retained for necessary maintenance of adjoining properties.

Proposal

1. The development consent has approved a single storey entry lobby built to the boundary within the existing side setback area. The proposal seeks to extend the addition to the upper level to increase the size of the second floor bathroom and ensuite.

Evidence

1. The matter commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act 1979. The Court heard from the adjoining owners at 13 St Andrews Street who did not object to the proposal subject to adequate waterproofing and drainage to their property, which has a single storey element that is also built to the boundary.

1. The Court heard expert heritage evidence from Mr S Davies, for the applicant, and Mr R Moore, for the council. The parties did not reach agreement and the s 34 conciliation conference was terminated. The parties agreed to my disposing of the proceedings under s 34(4)(b)(i) and that the evidence in the conciliation conference could be evidence in the hearing.

Heritage

1. The heritage experts agree:

Nos 13 and 15 St Andrews Street are a pair of lateVictorian terrace form cottages, appearing externally to be mirror reverse in layout and elevation treatment. Neither has any attached side development within their respective side setbacks although number 13 appears to have a narrower side setback than number 15.

1. The pair of terraces are contributory buildings in the HCA. Mr Moore considers that this contribution is reinforced by the two similarly scaled terraces on the opposite side of the street (12-14 St Andrews Street). Together these buildings, in his opinion, form a "gateway" to the mixed old and new development in the street.

1. The experts also agree that the context of the site is varied, with houses of different heights, setbacks, styles and periods, including contemporary dwellings and alterations and additions.

1. Within this context, Mr Davies considered the upper level side extension to be acceptable for the following reasons:

• it is a minor addition being about 5 sqm and approximately 4 m in length, and is setback about 4.5 metres from the front of the existing building.
• the upper level addition starts where the wall of the neighbouring property adjoins the boundary and is therefore an appropriate location for the proposal.
• the addition is of a simple form which occupies a small proportion of the existing side elevation and does not dominate or obscure the side wall or roof form of the original dwelling.

1. Mr Davies concluded that the proposal would not adversely impact on the heritage significance of the HCA and met the requirements of the LEP and DCP.

1. Mr Moore considered that the proposed upper level addition would obscure views and the appreciation of the form, massing and essential character of the terrace house. It would therefore diminish the significance of the building and its contribution to the HCA. Mr Moore also considered that this impact was not justified given that the addition was to provide extra area for a bathroom and ensuite which could adequately be accommodated within the alterations approved under the development consent.

Findings

1. The LEP and DCP provide the framework for assessing the proposal. The house and 13 St Andrews Street are two-storey terraces which together read as a detached element in the streetscape and which respond to the terraces on the opposite side of the street. The existing house, within this context, contributes to the heritage significance of the HCA.

1. The streetscape is varied and there are examples where the ground level of dwellings is built, at least in part, to the boundary. There did not appear to be upper level extensions that are built to the boundary. The houses in the street are generally detached or semi-detached and their side setbacks are of minimal width.

1. The DCP controls provide guidance on how the conservation objectives of the LEP are to be achieved. Part B1.2 of the DCP includes side setback guidelines which relevantly state:

Setbacks are a key component of the streetscape. They provide rhythm and add character to residential streets, provide views and glimpses of local and distant landmarks and vistas from public places and can provide access to the rear of properties.

.......

Where it is proposed to reduce existing side setbacks the proposal must meet the side setback controls and be designed to ensure that gaps between buildings do not appear to be filled when viewed from the street. Side extensions visible from the street or a public place should appear subordinate to the existing building.

1. Part B1.2 also includes side setback controls which include requirements:

Ensure that development is sympathetic to and respects the rhythm of the streetscape created by the lots and side setbacks of adjoining development.

......

Existing external access to the rear of the properties with a minimum width of 900 mm is retained.

1. Part B1.2 establishes minimum side setbacks. The approved ground floor extension and the proposal do not comply with these minimum numerical requirements. The controls also provide criteria whereby these numerical controls may be varied and buildings can be built to side boundaries.

1. In considering these criteria, I accept that there is a logic to permitting the approved ground floor to be built to the boundary as it adjoins and is of similar length and height to that part of the adjoining dwelling, which is also built to the boundary. There would be limited opportunities to view this extension and it would largely not be read in conjunction with or obscure the original house. This is not the case with the proposed upper level extension, which will be clearly visible and will obscure part of the side elevation of the original dwelling. While it is setback from the front, is of limited size and is well designed, I accept Mr Moore's evidence that the addition will detract from the significance of the dwelling and thereby reduce its contribution to the HCA.

1. I also find that the proposed upper level addition does not meet the criteria for varying the minimum side setback controls in the DCP as the pattern of development in the street does not generally include building/additions with upper levels built to the side boundary. Further, the criteria clearly discourage this by stating that higher portions of buildings are to be setback in accordance with the minimum setback controls.

1. I accept Mr Moore's evidence that adequate bathroom ensuite facilities have been approved in the development consent and that the need for the proposal does not justify the proposed changes to the dwelling given their impact on the HCA.

1. For these reasons the application must fail.

Orders

1. The appeal is dismissed.

2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2011/586) for alterations and additions to an existing dwelling at 15 St Andrews Street, Balmain, is refused.

3. The exhibits, except Exhibits 1 and A, may be returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 04 February 2013