Balmain Shipwrights Pty Ltd v Inner West Council

[2022] NSWLEC 1319

Land and Environment Court

New South Wales

Medium Neutral Citation:

Balmain Shipwrights Pty Ltd v Inner West Council [2022] NSWLEC 1319

Hearing dates:

14-15 June 2022

Date of orders:

23 June 2022

Decision date:

23 June 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [45]

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to Victorian terrace – heritage conservation – desired future character – bulk, form and scale – compatibility

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Leichhardt Local Environmental Plan 2013, cll 4.4, 4.4A, 5.10, 6.2, 6.4, 6.11A

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Cases Cited:

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Leichardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Balmain Shipwrights Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Pearman (Applicant)
R Wilcher (Solicitor) (Respondent)

Solicitors:
Bartier Perry Pty Ltd (Applicant)
Inner West Council (Respondent)

File Number(s):

21/348236

Publication restriction:

No

Judgment

1. This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Inner West Council (Council) of Development Application No. DA/2021/0757 (DA). The DA seeks consent for alterations and additions to the existing building, including a new awning at the front of the site, enclosure of the existing car parking space at the rear of the site and a two-storey residential dwelling above the car parking space, at 358 Darling Street, Balmain (site).

Site and setting

2. The site is legally described as Lot B in DP 381162. It has an area of 183.6m². The site is located between Darling Street (northern boundary) and Little Darling Street (southern boundary). The site is quite rectangular in shape and with a frontage of a little over 5m to each of its road boundaries. The site depth is some 36m. The site falls about 2m from Little Darling Street to the boundary with Darling Street. The width of Little Darling Street is approximately 7m.

3. The terrace building occupying the site is two-storeys to Darling Street with a pitched roof form. It is part of a terrace-pair. There is a single storey rear wing. At Darling Street, the ground floor is elevated from street level and setback 4.5m from the front boundary. The front setback area is used for a terrace/outdoor seating area for restaurant use at the ground floor level. The ground floor level contains a restaurant/bar area fronting Darling Street with the kitchen area and toilets at the rear. The car parking space and bin storage area at the rear are accessible from Little Darling Street. The first floor level contains office space, a kitchenette and toilet.

4. The site environs are characterised by a mix of building forms. Along Darling Street in the site vicinity are the civic and retail buildings of the Balmain commercial centre, the latter often in the form of Victorian terraces, and subject to contemporary alterations and additions. Little Darling Street occupies the southern bounds of the commercial strip in this area. It provides service access to Darling Street properties. But there are also a number of examples of rear additions or separate buildings fronting Little Darling Street. The southern side of Little Darling Street in the site environs provides the frontage for two residences, but mostly provides for rear access for residential properties fronting Llewellyn Street.

Issues

5. The outstanding issues between the parties (after amendments to the DA) involve some overlap and can be summarised as follows:

• The bulk and scale of the proposed development and its compatibility with existing development and the desired future character of the locality.

• The effect of the proposed development on the heritage significance of The Valley Heritage Conservation Area (see [13]).

Planning provisions

Leichhardt Local Environmental Plan 2013 (LLEP)

6. The site is part of a strip of land along Darling Street zoned B2 Local Centre under LLEP. The zone objectives are:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To ensure that development is appropriately designed to minimise amenity impacts.

•  To allow appropriate residential uses to support the vitality of local centres.

•  To ensure that uses support the viability of local centres.

•  To provide a mixture of compatible land uses.

•  To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres.

•  To integrate suitable business, office, residential, retail and other development in accessible locations.

7. The land south of Little Darling Street is zoned R1 General Residential.

8. Clause 4.4(1) relates to floor space ratio (FSR) and has the following objectives:

(a)  to ensure that residential accommodation—

(i)  is compatible with the desired future character of the area in relation to building bulk, form and scale, and

(ii)  provides a suitable balance between landscaped areas and the built form, and

(iii)  minimises the impact of the bulk and scale of buildings,

(b)  to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.

9. The maximum FSR under cl 4.4 is 1:1. However, cl 4.4A provides for exceptions to maximum FSR in certain instances. The objective is to “provide floor space incentives for mixed use development that incorporates active street frontages at ground floor level in Zone B1 Neighbourhood Centre or Zone B2 Local Centre.” There is a provision to allow for FSR up to 1.5:1 if the consent authority is satisfied under cl 4.4A(3) that:

(a)  the building will have an active street frontage, and

(b)  the building comprises mixed use development, including residential accommodation, and

(c)  the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.

10. The proposed FSR is agreed to be 1.2:1. It is also agreed that pre-conditions (a) and (b) above are satisfied. Whether the proposal is “compatible with the desired future character of the area in relation to its bulk, form, uses and scale”, is a central issue in the dispute.

11. The provisions at cl 6.11A have some alignment with the above. The objective of this clause is to promote residential accommodation as part of mixed use developments in business zones, such as the subject B2 zone “to support the vitality of neighbourhood and local centres”. Under cl 6.11A(3):

Development consent must not be granted to development for the purpose of residential accommodation on land to which this clause applies unless the consent authority is satisfied that—

(a)  the building comprises mixed use development, including residential accommodation, and

(b)  the building will have an active street frontage, and

(c)  the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.

12. Again, the point of dispute between the parties is limited to whether the proposal meets the prequalification of subcl 6.11A(3)(c).

13. The site is located within The Valley Heritage Conservation Area (listed as C7 at Schedule 5 to LLEP). A number of heritage items are nearby. Under cl 5.10(4) the consent authority must, before granting consent, consider the effect of the proposed development on the heritage significance of The Valley Heritage Conservation Area (HCA).

14. The parties also advised me of Draft Leichhardt Local Environmental Plan 2020, which has been subject to public consultation and is thus a consideration under s 4.15(1)(a)(iii) of the EPA Act. I was advised of certain provisions of pertinence and agree with the parties that nothing significant turns on this proposed instrument.

Leichhardt Development Control Plan 2013 (LDCP)

15. Certain provisions of Part C Sections 1 - 4, along with Appendix B (relating to “building typologies”) of LDCP were relevant to the case. There was some overlap in the provisions and below I attempt to synthesise the most pertinent concerns.

16. The provisions of C1.4 are concerned with heritage conservation. The nominated objectives are that development:

“a. does not represent an unsympathetic alteration or addition to a building;

b. encourages the protection, restoration, continued use and viability of buildings for their original purpose;

c. encourages the removal of unsympathetic elements;

d. is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter (Refer to:

e. conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting;

f. maintains the visual unity of groups of buildings, in particular semi-detached and attached terraces;

g. makes an appropriate visual and physical distinction between the existing building and new parts of the building;

h. protects and enhances views of the existing building from the public domain; and

i. new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter.”

Part C Section 1 comprises general provisions, including provisions dealing with alterations and additions in Section C1.3. The main objectives and controls of relevance are:

“Objectives

O1   To ensure that development:

a. complements the scale, form and materials of the streetscape including wall height and roof form;

b. where an alteration or addition is visible from the public domain it should appear as a sympathetic addition to the existing building;

c. makes a positive contribution to the desired future character of the streetscape and any heritage values associated with it;

d. is compatible with neighbourhood character, including prevailing site layout;

…

h. retains existing fabric wherever possible and maintains and repairs, where necessary, rather than replaces the fabric.

…….

Controls

…

The overall form of alterations and additions shall:

a. have regard to the provisions within Appendix B - Building Typologies of this Development Control Plan;

b. be compatible with the scale , form and material of the ex isting dwelling and adjoining dwellings , including wall height and roof form;

c. retain any building and streetscape consistencies which add positively to the character of the neighbourhood (e.g. architectural details, continuous rows of dwellings , groups of similar dwellings , or the like);

d. maintain the integrity of the streetscape and heritage significance;

…”

17. Council argued that Little Darling Street was best characterised as a laneway. The applicant did not agree. Section C1.18 is concerned with laneways. The section objectives are that development:

“a. respects the existing and desired future use, form and character of the laneway consistent with the laneway hierarchy as shown in Table C11 Laneway hierarchy;

b. achieves an appropriate level of amenity, access, security and landscaping; and

c. enhances the permeability of the neighbourhood by providing direct, safe and attractive pathways for vehicles, pedestrians and cyclists.”

18. The objectives of relevance to a laneway of 7m include at Control C2:

“a. additional lane fronting dwellings may be provided where other lane fronting dwellings are located within 15m of the boundaries of the proposed dwelling, and if safe pedestrian access can be provided; and

b. the service function and character of the lane is to be protected and enhanced.”

19. Then in regard to “urban form, under Control C6, that:

“… development shall comply with a laneway envelope that has:

a. a maximum side wall height of 3.6m;

b. a 45 degree building envelope taken from the top of the side wall; and

c. a maximum roof height of 6m.”

20. Part C Section 2 of the DCP is concerned with urban character. The site falls within the Darling Street Distinctive Neighbourhood and the Balmain Village Sub Area within this neighbourhood. Below the nominated desired future character objective for the Darling Street Distinctive Neighbourhood and some of the more pertinent controls are reproduced (Ex 1 p 129):

“Objective

O1 To facilitate development that is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood.

Controls

C1 Preserve and enhance the existing streetscape with special consideration for the remaining Colonial and Victorian buildings.

C2 Allow for contemporary redevelopment where it is complementary to the existing heritage streetscapes and character/scale of the neighbourhood.

...

C4 The interface between Business zoned sites along Darling Street and adjacent Residential zoned land is to be carefully considered in light of issues relating to bulk, scale and residential amenity. In this regard the provisions of Part C4.5 – Interface Amenity within this Development Control Plan are to be considered in the assessment of development on business zoned land along the interface boundary between Residential and Business zoned land.

C5 The maximum building wall height is 6m for residential sites and 7.2m for commercial sites except as follows:

a. the maximum building wall height for the Balmain Village Precinct is to be 10m on the southern side and 7.2m on the northern side.

C6 Due to the diversity of building scale along Darling Street, the maximum building wall heights listed above should also be determined on the basis of the following:

a. the primary reference is the building scale in the immediate vicinity of the subject site, eg terrace houses, traditional Victorian shop top terraces and single storey dwellings. i.e. they should be in keeping with their neighbours;

b. the maximum building wall height in the commercial and eastern portion of the neighbourhood is generally 7m – 10m.

C7 Changes to the front façades of continuous rows of attached dwellings shall be avoided by requiring any additions to be located at the rear of dwellings.

C8 Rooftop additions higher than the building wall height, if permitted, are to be set back from the front of the building to preserve the traditional scale of development and streetscape.

...”

21. The LDCP provisions relating to Balmain Village Sub Area do not add greatly to the policy setting.

22. Other LDCP provisions arising in evidence included:

1. General residential provisions at Part C3.1 (Ex 1 p 134 et seq), including:

“Objectives

…

O3 To ensure that alterations, additions to residential buildings and new residential development are compatible with the established setting and character of the suburb and neighbourhood and compatible with the desired future character and heritage significance of the place and its setting.

O4 To ensure that all residential development is compatible with the scale, form, siting and materials of existing adjacent buildings.

Controls

C2 Additions to an existing building are generally:

a. located to the rear or the side of the existing building when viewed from the principal street frontage; and

b. subservient to the form of the existing building; and

c. maintain the form, fenestration, roof forms and chimneys of the existing building when viewed from the principal street frontage; and

d. of a design which is compatible with but does not compete with the architectural character of the existing building or the Building Typologies; and

e. of a scale, proportion (including proportion of doors and openings) and material which is compatible with the existing building.”

2. Part C3.2, concerned with site layout and building design, including:

“Objectives

…

O3 To ensure that buildings are constructed within an appropriate Building Location Zone (BLZ) from the front and rear boundary to protect neighbourhood features such as streetscape, private open space, solar access and views.

…

Controls

…

C3 Building Location Zone (BLZ) is the part of the subject site where it can be reasonably expected that a building can be located. The BLZ is determined by having regard to only the main building on the adjacent properties…”

See below for a figure explaining the building location zone.

Figure 1 - Building location zone (source Figure C128 LLDCP)

23. Appendix B of LDCP provides the “building typologies” referenced elsewhere in the plan. Among other things, Council submits that the proposal would correctly fall within Section 7 of Appendix B as a two and three storey terrace. The controls here include that rear additions are to have a ridge line located below the eave line (of the existing building) (Ex F p 29).

Evidence and consideration

24. The experts providing evidence in this case were as follows:

Expertise	Appointed by
G Chapman	Town planning	Council
J Pagan	Town planning	Applicant
L Trueman	Heritage conservation	Council
P North	Heritage conservation	Applicant

25. The town planning and heritage joint expert reports were admitted into evidence as Ex 3 and Ex 4, respectively.

Selected points from the evidence

26. On the topic of compatibility, both planning experts referenced certain findings of Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture), which I quote selectively as follows:

“22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

...

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

- Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

- Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment.”

27. Mr Chapman’s position might be summarised from his input into the joint report as follows (Ex 3 pp 7-8):

“In my opinion the proposed 3-storey form on Little Darling Street and at the rear of the site is not a compatible built form in relation to the visual scale of development on Little Darling Street, and is not consistent with the desired future character for development on Little Darling Street as addressed in Part C3 of the DCP and therefore the development proposal does not meet Clause 6.11A – Residential Accommodation in Zone B1 and Zone B2.

Clause 6.11A(3) requires the consent authority to be satisfied that the building is compatible with the desired future character in its bulk, form, uses and scale. In my opinion the 3-storey built form is not compatible in terms of its bulk, form and scale to Little Darling Street and is out of character with the visual setting of the rear of the buildings to Little Darling Street from 354 – 358 and the 3-storey form is greater than the development at the rear of 342 – 348 Darling Street.

It is GC’s opinion, that Clause 6.11A(3)(c) of the LEP could be achieved by a reduction in scale of development to the rear lane by a single storey garage element, potentially with an upper level in an attic roof form and a development including the existing restaurant, commercial floor area and residential accommodation (as proposed) could be achieved on the subject site in the following way:

• The existing office space at the first floor level (drawing No. 2021/01) could be converted to residential accommodation and with a rear addition at the first floor level that would ensure a 2-storey rear addition is generally within the established building location zone and this would allow the residential accommodation to have a north-facing living/bedroom and a rear addition that would be visually compatible scale of development as viewed from Little Darling Street.”

28. In regard to heritage conservation, Ms Trueman found that due to its bulk, scale and form the proposed addition would adversely and unreasonably effect the heritage significance of Little Darling Street and the wider Valley HCA. An impact of considerable concern was that the proposal would block the view of the existing building’s roof form as viewed from Little Darling Street. But the more general principle of adding a new three storey structure facing Little Darling Street was of concern, and reliance on other unsympathetic development in Little Darling Street, built prior to current controls, was seen as inappropriate. The point was put this by Ms Trueman (Ex 4 p 5):

…

“(ii) The rear of the existing Victorian terrace is highly visible from Little Darling Street, including its original roof and service wing. It is readily distinguishable as a Victorian terrace that forms part of a group. These dwellings were built to front Darling Street with service access from the rear lane, known as Little Darling Street.

(iii) The terrace, and its group, make a strong contribution to the historic character of Little Darling Lane, providing an understanding of the historic development of the properties and their connection to Darling Street, with traditional rear service wings and access from a rear lane .

(iv) The existing single storey addition on the site and adjacent sites allows for the retention of public domain views of the rear of the terrace.

(v) The proposed development is for a three storey structure at the rear of the properties that would block all views of the existing terrace on the site, obstructing any understanding of the historic development of the site and its connection to Darling Street.

(vi) Uncharacteristic development in Little Darling Street includes two and three storey buildings that block views to the original buildings on the site and alter the scale and character of Little Darling Street. These developments should not be used as justification for further development of inappropriate scale and character, such as is proposed in this application.

(vii) The unsympathetic additions mentioned by Mr North below can all be reversed to provide an improved outcome. Their existence does not block views of the rear of the original buildings or permanently diminish the contribution of the row of original terrace houses to the streetscape and cannot be used to justify the construction of a three storey building of uncharacteristic

height, scale, bulk and character.

29. Like Mr Chapman, Ms Trueman saw possibility for further accommodation to be provided on the site but as a rear addition more consolidated with the existing building. Ms Trueman was also concerned that should this development be approved, it would set a precedent for three storey buildings along the laneways and rear streets within The Valley Conservation Area (Ex 4 p 11).

Consideration

30. There are four major, albeit inter-related, reasons why I prefer the applicant’s case to that of Council in this matter.

31. The first reason is concerned particularly with the zone objectives, and the applicable controls under LLEP, a higher order instrument than LDCP. There are quite a number of objectives nominated for the B2 zone (see [6]), with many of these zone objectives appropriately seen as neutral as far as this application is concerned. However, the zone objectives do give notable attention to the topic of encouraging the vitality of the local (Balmain) centre, including through allowing appropriate residential uses in the zone. This objective is brought into effect, in part, through the provisions which allow for a greater FSR for mixed use development involving active street frontages in the B2 zone (cl 4.4A of LLEP). Residential accommodation is to be part of this incentives program, as emphasised again in cl 6.11A of LLEP (see clause objective at [11]). There is no doubt that the test of compatibility “with the desired future character of the area in relation to its bulk, form, uses and scale” is front and centre (see cl 4.4A(3)(c) and cl 6.11A(3)(c) of LLEP) in the question of the delivery of the incentive. This emphasis to vitality in the centre, in part associated with the encouragement of residential development, seems to me to be important. These policy provisions apply to the B2 (and B1) zone under LLEP for a distinct purpose. They do not relate to the more general residential areas of the local government area.

32. The second reason why I prefer the applicant’s case is concerned with this question of compatibility. I accept the town planning experts reference to Project Venture as a framework for the evaluation of compatibility. It is of considerable importance to me that in this instance there is agreement that the proposal is physically compatible in the terms of Project Venture (ie in consideration of issues such as noise, overlooking, overshadowing). The proposal then turns, significantly, on the question of visual compatibility, or whether “the proposal’s appearance is in harmony with the buildings around it and the character of the street”.

33. When I turn to the acceptability of the visual appearance of the development, it seems to me that the highest bar to this question is concerned with its locational status within The Valley HCA. On this point, it is clearly the case that the site’s Darling Street terrace frontage is the principal public presentation of the site. Positive contributions are proposed to this presentation (Ex 4 p 2) which seem well aligned with the provisions of C1.4 of LDCP. I accept Mr North’s view that the presentation of the group of terraces from Little Darling Street was never intended to be for public presentation and was more an area for service functions (Ex 4 p 6). But this only goes so far. The presentation to the rear does illustrate and help understand the utilitarian side of this historical housing form, although it would not be reasonably seen as unique or rare. This rear presentation provides some contribution to the significance of the conservation area. The extent of this contribution however seems to me to be not high. This is the third reason why I prefer the applicant’s case. The points behind this conclusion are as follows:

• The extent of public visibility of the rear of the site is limited - The buildings at 1 Little Darling Street and 366 Darling Street limit considerably sight lines to the rear of the site from Montague Street. There are open views to the site, along with some other terrace pairs, further to the east along Little Darling Street. However such views are only available when walking along Little Darling Street which could not be expected to be a very common public occurrence.

• The historic character of Little Darling Street in the immediate environs of the site is significantly compromised - The weight which might go, otherwise, to retaining the historic character of Little Darling Street is lessened by the fact of the presentation of the building at 1 Little Darling Street. While there are remaining terrace forms to the immediate west and to the east generally of the site, the scale and immediacy of the three storey form, built essentially to the road boundary, at 1 Little Darling Street, already reduces the significance of Little Darling Street in the immediate site vicinity.

34. The fourth reason why I favour the applicant’s case is that the proposal, in providing for additional residential accommodation in accordance with the B2 zone objectives, does so with an acceptably harmonious visual presentation, generally. There was some considerable exchange among the legal practitioners as to the particulars of LDCP, and their applicability, including whether Little Darling Street should be characterised as a lane or not. In regard to the question of building height, I generally agree with Council that it is unlikely that there was an intention that a 10m wall height control should apply to Little Darling Street. In any event it was agreed by the experts that such a building height would be inappropriate in the circumstances and was not proposed. The 10m height control is most obviously concerned with Darling Street, itself (see [20] Control C5). But I am also not of the view that the 3.6m building height applying laneways requires strict compliance. There seems to be little benefit in doing so. The proposal is already seen to be “physically” compatible by the planning experts, and in that sense does not bring unreasonable amenity impacts to neighbours. In regard to the heritage conservation topic, even a building of this height, or lower, would prejudice views of the roof line of the terrace pair, the most important attribute in heritage conservation terms. When I look to the objectives of the laneway controls at C1.18, and question the existing and desired future use, form and character of the laneway, I turn again to the zone objectives, which, for me, link this particular laneway to the vitality of Darling Street. I see this proposal as accommodating this objective.

35. In regard to built form and the question of compatibility or harmony, all the experts agreed that, from directly in front, the proposal would present as two storeys to Little Darling Street, with a dormer window on the south roof plane (reduced in size with agreed conditions). However, when viewed while walking otherwise down Little Darling Street the northern dormer or third level would be readily apparent, after one passes the visually blocking structure of 1 Little Darling Street. I agree with Mr North’s opinion that the design of this third level is sensitive to its context and provides for a relatively harmonious outcome. This design, through its roof form, materials, detailing and colour, provides for a visual emphasis to the masonry gable end and pitched roof, and on balance is acceptable in the setting. The proposed retention of elements of the fabric of the terrace form was also not unimportant. Generally, my sense was that the proposal did not unreasonably offend the objectives of C.14 of LDCP. I was also of the view that given the contextual particulars, the proposal was satisfactory in regard to the objectives behind Part C3.2 in LDCP, relating to building location zones. That is in regard to protecting neighbourhood features such as streetscape, private open space, solar access and views.

36. I do note that the Council’s experts made suggestions about the opportunity to provide for residential accommodation through development more consolidated with this existing terrace form, but this is not the application before me.

37. There was general agreement in regard to proposed conditions of consent (without prejudice on Council’s part). The exception was in regard to Condition 3(a)(iii) where the parties disagreed whether the ridge height of the new construction should be reduced in height by 200mm or 300mm. I see that the difference would be hardly noticeable in the circumstances and adopt the middle ground. The conditions have been altered to suit.

Objector concerns

38. I have given consideration to objector submissions (Ex 1 p 185 et seq). The issues raised included the two points of dispute between the parties which are at the hub of my findings (ie visual compatibility and heritage conservation impacts). Objections were also expressed in regard to visual privacy, overshadowing and insufficient parking. I accept the advice of the planning experts that these issues are reasonably addressed with the application. Mr Pagan’s evidence in regard to neighbour amenity is at par 2.14 of Ex 3, Mr Chapman gave his evidence orally.

Other issues

39. Certain jurisdictional matters require attention.

40. In regard to LLEP, I formally note that, having regard to cll 4.4A and 6.11A, I am satisfied that in this instance:

1. the building comprises mixed use development, including residential accommodation, and

2. the building will have an active street frontage, and

3. the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.

41. I was assisted by the agreed position of the planning experts in coming to my conclusion in regard to items (a) and (b) above. The reasoning for my finding of satisfaction in regard to item (c) is found in the body of this judgement.

42. Further in regard to LLEP, I have considered the matters at cl 6.2(3) in regard to earthworks and find nothing of concern in regard to these matters. In regard to cl 6.4, concerned with stormwater management, I have considered the matters at subcl 6.4(3). In light of the advice that Council’s engineering experts are satisfied in regard to the matters, I too am satisfied.

43. In regard to State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6(1) provides that prior to granting consent to carrying out of any development, the consent authority is required to consider whether the land is contaminated. This matter has been considered with the parties agreeing that contamination is unlikely. An agreed condition provides for any unexpected finds. The requirements of cl 4.6 are satisfied.

Conclusion

44. The DA in its amended form is acceptable on its merits.

Orders

45. The Court orders that:

1. The appeal is upheld.

2. DA/2021/0757 for alterations and additions to the existing building, including a new awning at the front of the site and enclosure of the existing parking space at the rear as a garage and a two-bedroom residential dwelling above, at 358 Darling Street Balmain, is determined by the grant of consent subject to the conditions set out in Annexure A.

3. All exhibits are returned with the exception of Exhibits A, B, C, M, N, O, P and 2, which are retained.

………………………..

P Walsh

Commissioner of the Court

Annexure A.pdf

**********

Decision last updated: 23 June 2022