Baillie v Leichhardt Council

[2009] NSWLEC 1244

Land and Environment Court

of New South Wales

CITATION:

Baillie v Leichhardt Council [2009] NSWLEC 1244

PARTIES:

APPLICANT
Peter Baillie

RESPONDENT
Leichhardt Council

FILE NUMBER(S):

11275 of 2008

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT APPLICATION :- alterations and additions to the existing cottage and construction of a new two-storey dwelling
Impact on streetscape and residential amenity

LEGISLATION CITED:

Land and Environment Court Act 1979
Leichhardt Local Environmental Plan Plan 2000
Leichhardt Development Control Plan 2000

DATES OF HEARING:

16 March 2009, 16 April 2009, 6 May 2009

EX TEMPORE JUDGMENT DATE:

6 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Rigg, solicitor
of Deacons

RESPONDENT
Ms R Mc,Culloch, solicitor
of Pikes

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

6 May 2009

11275 of 2008 Peter Baillie v Leichhardt Council

JUDGMENT

1 This is an appeal against the refusal by Leichhardt Council (the council) of development application (D/2008/360) for alterations and additions to the existing cottage and construction of a new two-storey dwelling at 9 Moore Street, Rozelle (the site).

2 The site, its locality, the history of the application and the planning controls are in the amended Statement of Facts and Contentions.

3 A conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) commenced on site on 16 March 2009 and was adjourned for amended plans and further information. The s 34 conference resumed on 16 April 2009 where the Court heard evidence on behalf of the adjoining owner at 5 Moore Street, Rozelle. The Court also heard expert evidence for the council from Ms D Laidlaw, planner, and Mr R Staas, heritage architect, and for the applicant from Mr B Lay, architect/planner/heritage consultant.

4 In response to the concerns raised, the applicant sought leave to rely on further amended plans. The further amended plans delete the second storey curved addition from the original cottage (unit 1), which is to be now two bedrooms plus a study. The curved second storey addition proposed for the new dwelling facing Pine Street (unit 2) has been deleted and a second storey containing one bedroom is now proposed. The second storey is set back further from 5 Moore Street. Only one car space is now proposed for both units and the carport over this car space is deleted. Subdivision of the allotments is no longer proposed.

5 The amended plans address the concerns of the experts, but the owner of 5 Moore Street maintained concerns in relation to solar access to north-facing windows and the rear garden, the outlook from their back garden and the loss of the landscape strip as well as impacts of noise and overlooking.

6 The hearing reconvened on 6 May 2009. The parties did not reach agreement and the s 34 conciliation conference was terminated. The parties consented to me disposing of the proceedings under s 34(4)(b) of the Court Act. The parties also agreed that the evidence from the conciliation conference including the site view, the objectors and expert evidence were admissible pursuant to s 34(12).

7 The key dispute between the parties is that the proposal does not comply with cl B1.2 in Leichhardt Development Control Plan 2000 (the DCP) and results in adverse amenity impacts, particularly overshadowing of 5 Moore Street.

8 No further evidence was called in relation to the amended plans. The parties agreed that the plans had addressed the concerns of the experts, including those in relation to the Building Location Zone (BLZ) in cl B1.2 of the DCP and overshadowing.

Findings

9 One of the main concerns with the original plans was the impact resulting from the curved roof form of the first floor of both unit 1 and unit 2. Mr Staas and Ms Laidlaw considered the roof form to be uncharacteristic of the streetscape. Further, the roof form increased the overshadowing of the windows and rear outdoor space to 5 Moore Street.

10 The amended plans have deleted the proposed first floor addition to unit 1, thereby removing any overshadowing impact from unit 1 on 5 Moore Street and maintaining the appearance of the existing cottage in the street.

11 The amended plans have also deleted the curved roof element from unit 2. A more traditional form, with a gabled roof, is now proposed. This has increased the wall height of unit 2, which the experts considered acceptable in the street and in relation to the adjoining cottage at 1 Pine Street. The first floor has been moved further away from 5 Moore Street, which has reduced the overshadowing impact when compared to the original proposal.

12 Ms Laidlaw’s concerns in relation to the BLZ centred on the second storey addition to the original cottage which, in her opinion, resulted from the second dwelling on the site and resulted in adverse impacts on the streetscape and amenity. This has been resolve by the amended plans.

13 Ms Laidlaw was also concerned about the removal of the continuous green space at the rear of the Moore Street dwelling.

14 The principle of cl B1.2 in the DCP is:

Plan and design new housing and additions and alterations to existing housing to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscape areas.

Plan new housing to provide a balance between building and spaces which respects the character of the area.

15 The BLZ is defined by the average front and rear setbacks of both the adjacent buildings on either side of the site. The site is a corner site and therefore there is no adjacent building on one side. In these circumstances it is reasonable to look at the rear setback of the other buildings in Moore Street to establish the appropriate BLZ for the site.

16 While there is no consistent rear setback, the setback of the additions to the existing cottage extend for a substantial distance along Pine Street. The proposal removes these additions and extends less than the adjoining building at 5 Moore Street or other buildings further to the south. Unit 1 is well within the BLZ and the envelope of the existing cottage.

17 Given the size of the existing cottage on the site, it is not unreasonable to expect that it could be extended. An extension to the existing cottage within the BLZ, particularly if this were a two-storey addition, would potentially impact more on the amenity of 5 Moore Street than the proposal to place a separate dwelling at the rear of the site.

18 Clause B1.2 provides matters, which should be addressed if a building extends outside the BLZ. These include:

· visual aspect of the bulk and scale, as viewed from adjoining properties;

· amenity to adjacent properties (ie, sunlight, privacy, views);

· location and retention of existing significant vegetation;

· compliance with the applicable statutory controls, including Floor Space Ratio and minimum landscape area of 40% of the site;

· the existing streetscape and character and scale of surrounding development; and

· the adequacy of the size, dimensions, privacy and solar access of private open space for outdoor recreation and landscaping.

19 The floor space ratio of the proposal is 0.58:1, which is below the control in the Local Environmental Plan 2000 (the LEP) of a maximum of 0.7:1. The landscape area is 43%, which also more than meets the control in the LEP of a minimum of 40%. The proposal is consistent with both the streetscape of Moore Street and Pine Street and provides adequate open space and landscaping and no significant trees are to be removed.

20 The second storey of unit 2 is set back and would provide acceptable bulk and scale when viewed from 5 Moore Street. There are no privacy impacts resulting from the proposal. Window 11/12 is off a bedroom and provides only oblique opportunities for overlooking which council did not raise as an issue. There will be an increase in overshadowing of windows and open space of 5 Moore Street, but this is minor and not unreasonable given that 5 Moore Street is to the south of the site and some overshadowing from any reasonable development on the site is likely to result.

21 I find that the proposal meets the principles for the BLZ and satisfactorily addresses the issues to be considered where development is outside the BLZ.

22 The orders of the Court are therefore:

1. Leave is granted to rely on the amended plans filed on 1 May 2009.
2. The appeal is upheld.
3. The development application (D/2008/360) for alterations and additions to the existing cottage and construction of a new dwelling at 9 Moore Street, Rozelle, is approved subject to the conditions in Annexure A.
4. The exhibits, except Exhibits 1, 3, A and E, may be returned.
5. The Applicant pay the Respondent’s costs incurred as a result of the amendment of the plans in the agreed sum of $5000.00 forthwith.

___________________

Annelise Tuor
Commissioner of the Court
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