Capolupo v Inner West Council

[2021] NSWLEC 1077

Land and Environment Court

New South Wales

Medium Neutral Citation:

Capolupo v Inner West Council [2021] NSWLEC 1077

Hearing dates:

15 and 16 December 2020

Date of orders:

18 February 2021

Decision date:

18 February 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA/2020/0438 for alterations and additions to the existing dwelling upon the land be granted consent subject to the conditions of consent set out in Annexure ‘A’.

(3) The exhibits are returned, other than exhibits 1, 4, A and B.

Catchwords:

DEVELOPMENT APPLICATION – Haberfield Heritage Conservation Area – orders by consent

Legislation Cited:

Ashfield Local Environmental Plan 2013

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Texts Cited:

Comprehensive Inner West Development Control Plan 2016

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Lou Capolupo (First Applicant)
Fay Capolupo (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicants)
S Turner (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicants)
Inner West Council (Respondent)

File Number(s):

2020/230810

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/2020/0438 (DA). The DA sought consent for alterations and additions to an existing dwelling house (the proposal) at 32 Empire Street, Haberfield (the site) by Inner West Council (the Council).

2. The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 and 16 December 2020. I presided over the conciliation conference and subsequent hearing.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter commenced with an onsite viewing, limited in its number of participants, before thereafter being conducted by Microsoft Teams.

4. During the conciliation conference, the parties were unable to reach agreement to terms of a decision that would be acceptable to the parties. Accordingly, the conference was terminated and a hearing held forthwith.

5. During the course of the second day of the hearing, the parties and their experts agreed upon a series of prospective amendments to the proposal, which cumulatively work to satisfactorily resolve the contentions. With this agreement further developed during a brief adjournment, the parties now seek the Court to make orders by consent.

6. Although the orders sought are presented with the consent of parties, the Court retains its duty to make an assessment of the development application and to determine whether it is appropriate to grant development consent in the terms sought. Similarly, the Court is not bound to the parties’ agreement in the making of any orders.

7. In its simplest summary, the parties agreed the roof form of the proposed additions - if modified via conditions of consent - would positively resolve the relationship between the existing dwelling’s roof form and the proposed form and scale of the new addition. This was the central issue in contention.

8. Additionally, the parties agreed other aspects of the proposal - if modified via conditions of consent - would improve consistency between the proposal and relevant planning controls, further resolving the remaining contentions.

The proposal

9. The proposal can be more fully described as follows:

1. The demolition of the existing rear single storey extension and existing garage;

2. Construction of a new basement laundry with lift access;

3. Construction of a new single storey extension with lift access, new ground floor pantry, tv area, kitchen and family/dining area;

4. Internal modifications to the existing front portion of the dwelling to create a new bathroom and internal access stairs leading to the proposed basement and attic space;

5. Construction of a new attic space incorporating main bedroom, parents retreat, wardrobe, bathroom and lift access;

6. Construction of a new operable pergola over rear outdoor area; and

7. Construction of a new double garage with gablet roof elements.

10. The proposed addition to the roof form, central to the contentions, comprises a hipped form springing from the rearward-facing plane of the existing roof. The ridge line of the proposed addition is situated approximately 90mm below the transverse ridge line of the existing dwelling.

11. A total of six skylights are proposed in the hipped planes of the roof addition and constitute the sole method for admitting natural light and air to the proposed attic space. Similarly, the sole outlook available to the attic level is via these skylights.

12. The proposed double garage comprises a hipped roof form with two gablet roof elements.

13. The proposed single storey extension opens onto private outdoor space, which in turn is proposed to be covered with an operable pergola. The operable nature of the proposed pergola is such that it would diminish the proportion of site available as open space and able to be accepted as landscaped area.

The planning controls

14. The relevant applicable planning controls are as follows:

1. State Environmental Planning Policy 55 – Remediation of Land (SEPP 55);

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX);

3. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP Vegetation);

4. Ashfield Local Environmental Plan 2013 (ALEP); and

5. Comprehensive Inner West Development Control Plan 2016 (CIWDCP).

15. The proposal is a use permissible with consent within the R2 – Low Density Residential zone under the Ashfield Local Environmental Plan 2013.

16. The site is located within the Haberfield Heritage Conservation Area (HHCA). The subject dwelling and its improvements are not listed as heritage items.

17. The proposed development complies with all development standards that apply to a proposal of this nature with the exception of landscaped area. A Clause 4.6 written request to vary this development standard has been provided by the applicant in support of the proposal.

The site and its context

18. The site is located at 32 Empire Street, Haberfield and is formally known as Lot 1 DP 300759. The single allotment has a width of approximately 13m and depth of approximately 42.4m. The site area is 546.2 square metres.

19. The immediate vicinity can be characterised as primarily single, detached residential dwellings, typically of one and two stories, although exhibiting a reasonable diversity in architectural expression.

20. Common to many nearby dwellings is their formal street presentation, often with greater levels of architectural composition and ornamentation, whilst to the rear of the lot, less visible from the street, dwellings typically adopt a more utilitarian architectural expression and more diminutive forms.

21. A defining feature of Haberfield is the resultant sense of a garden setting, emphasised by a prevailing pattern of dwellings sited with driveways leading to a detached garage at the rear of lots.

22. This garden setting is consistent with the identified qualities of the HHCA, and is evident across much of Haberfield.

23. Less characteristic of Haberfield, but important to this matter, is the relationship of the site to nearby Algie Park.

24. The location of Algie Park, within the centre of a larger suburban block, establishes an atypical relationship between public open space and the sides and rear of a number of properties.

25. For this reason, Algie Park creates a public vantage point from which the otherwise consistent pattern of formally composed streetscapes is not evident.

26. Instead, views from Algie Park can be characterised by a more haphazard composition of the sides and rear of numerous dwellings. Where these visible dwellings are typical of Haberfield it results in a public view of the less-formally composed elements of buildings, their rear garages and more diminutive rear extensions.

The issues

27. The contentions pressed by Council include the following:

1. Built form and heritage impacts related to the proposed scale and form of the proposed additions relative to the scale and form of the existing dwelling are considered to be unacceptable and inconsistent with the desired future character of the HHCA;

2. The number and location of skylights within the proposed roof form additions is considered excessive, is greater than 1 per plane of the proposed roof additions and are visible from public vantage points;

3. The inclusion of gablet roof elements as part of the proposed garage roof form which, Council contends, is inconsistent with cl 6.5(3)(c) of the ALEP;

4. A numeric non-compliance with cl 6.5(3)(d) of the ALEP, which requires a minimum required landscaped area of 50% and contributes to an diminution of the garden setting character of the local area;

5. As a consequence of the issues set out above, and particularly their cumulative impacts upon the heritage values of the HHCA, the proposal is not considered to be in the public interest; and

6. Inadequate information has been provided to fully complete the assessment of the proposal, in particular details of the proposed lift to ensure it does not protrude beyond the plane of the proposed roof form, and proposed materials and colours.

28. During the hearing, the parties and their experts agreed that each of these contentions could be satisfactorily resolved by amending the proposal via conditions of consent.

29. The substantive amendments agreed to by the parties include:

1. Reducing the overall height of the rear addition by introducing an extent of flat roof at the centre of the otherwise hipped form, which would have the effect of reducing the apparent ridge height of the amended roof to 300mm below the transverse ridge of the existing dwelling, and achieving greater consistency with the roof form of the adjacent dwelling at 34 Empire Street;

2. The amended roof form may incorporate skylights into the central, flat section and thereby reduce the number of skylights proposed in each of the other planes of the roof to no more than one;

3. The deletion of the two gablet elements from the proposed garage roof to result in a more utilitarian hip form;

4. The deletion of an extent of proposed paving and associated operable pergola having the effect of increasing the landscaped area provided to 43.3% of the total site area and into closer conformity with the development standard of 50%; and

5. The submission of a schedule of proposed colours and materials to the satisfaction of Council.

The evidence

30. The Court was assisted by experts in planning and heritage, who conferred to prepare joint reports as follows:

1. Mr Conor Wilson for the respondent and Mr Brad Delapierre for the applicant, prepared a joint planning report marked Exhibit 2; and

2. Dr Noni Boyd for the respondent and Ms Ruth Daniell for the applicant, prepared a joint heritage report marked Exhibit 3.

31. In oral evidence, after the broad terms of agreement between the parties were reached, the experts leant support to the proposed amendments.

32. Specifically, Dr Boyd was satisfied that a 300mm difference between the existing dwelling’s transverse ridge line and the ridge line of the proposed roof form additions was sufficient to adequately reduce the scale of the additions and its visibility from key public vantage points.

33. Similarly, Dr Boyd was satisfied the amended proposal would more appropriately reflect the provisions of the CIWDCP, particularly Section 2 clause 2.6, and further that such an amendment would resolve Council’s contentions regarding built form, scale and heritage impacts.

34. Further, Dr Boyd was satisfied the amended proposal limiting any visible skylights to a maximum of one per roof plane would make the proposal consistent with clause 2.6(k) of the CIWDCP, and is reasonable.

35. With the deletion of the gablets from the proposed garage roof, Dr Boyd was satisfied the amended proposal would be consistent with cl 6.5(c) of the ALEP.

36. Ms Daniell gave broad agreement to Dr Boyd’s support for the proposed amendments.

37. It is common ground between the planning experts that the existing landscaped area of the subject site is 35% of the total site area.

38. It is also common ground between the planning experts that the proposal results in a landscaped area of 37.5% of the site area.

39. Clause 6.5(3) of the ALEP requires that a minimum 50% of the site will be landscaped area.

40. During oral evidence given at the site viewing, Mr Wilson stated that the 50% minimum landscaped area is, from time to time, not achieved in approvals granted in the area, and Council recognises the difficulty in doing so in some instances.

41. Mr Wilson stated that in the absence of numeric compliance, Council is interested in increasing the existing extent of landscaped area, particularly in a manner which best preserves the garden setting character of the Haberfield area and to the extent that Council is satisfied that numeric compliance can not otherwise reasonably be achieved.

42. At paragraph 32 of the joint report of the planning experts, Mr Delapierre gave evidence for the applicant that it would be appropriate to impose a condition of consent requiring the proposed paving beneath the operable pergola be removed and reconfigured as landscaped area. Doing so would result in a landscaped area equivalent to 43.4% of the site.

43. Additionally, the parties’ agreement to the deletion of the proposed operable pergola would further improve the available sunlight and hence viability of the additional landscaped area.

44. The joint report of the planning experts includes at Appendix 3 a cl 4.6 written request in support of a variation to the minimum 50% landscaped area.

45. The parties are satisfied the proposal, amended by agreed conditions of consent, will achieve an acceptable landscape area, and therefore the cl 4.6 written request is well-founded.

Findings

46. The applicant raised a number of objections to aspects of Dr Boyd’s evidence at the commencement of the hearing. I have however ruled to accept it, giving appropriate weight to the objections raised. I made this ruling after giving due consideration to s 38 (1) and (2) of the LEC Act, which permits less formality and technicality in proceedings, and some freedom from the rules of evidence which would otherwise apply.

47. I accept the orders sought by consent of the parties. Nonetheless, the Court retains its duty to make an assessment of the development application and to determine whether it is appropriate to grant development consent in the terms sought.

48. Under s 34AA(2)(b)(i) of the LEC Act, having terminated the conciliation conference, I must dispose of the proceedings following the hearing held forthwith.

49. In this matter, the Court would exercise the function under s 4.16 of the EPA Act to grant consent to the development application.

50. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied the proposal is permissible with consent within the R2 – Low Density Residential zone and is consistent with the principal development standards set out in the ALEP, with the exception of cl 6.5(3)(d) which specifies a minimum 50% of the site will be landscaped area.

51. Evidence of owner’s consent has been provided with the DA.

52. Clause 4.6(3) of the ALEP requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

53. Clause 4.6(4) of the ALEP requires the consent authority to be satisfied the applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

54. Additionally, cl 4.6(4)(b) of the ALEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

55. The parties agree the existing dwelling achieves 35% landscaped area and that with amendment the proposal will achieve 43.4% landscaped area. This represents a 24% increase to the existing extent of landscaped area, and a resultant non-compliance of 13.2% with the numerical standard of 50%. The applicant has also provided a cl 4.6 written request seeking to justify this non-compliance.

56. I am satisfied the cl 4.6 written request, prepared by Mr Brad Delapierre of Think Planners and dated 3 December 2020, demonstrates the objectives set out in cl 6.5 of the ALEP have been met despite the non-compliance. These objectives deal with maintaining the single storey appearance of dwellings in the HHCA. The amended proposal will not materially alter the relationship of the existing single storey dwelling to the street.

57. Similarly, and consistent with cl 4.6(4) of the ALEP, I am satisfied the cl 4.6 written request adequately addresses the objectives of the R2 – Low Density Residential zoning, providing for the housing needs of the community within a low density residential environment. I am satisfied the amended proposal will provide improved access and utility within the dwelling to serve the applicant into their advancing years and allowing them to age in place.

58. The parties agree, and I am satisfied, that the deletion of the agreed extent of outdoor paved area and deletion of the associated operable pergola will serve to increase the amount of landscaped area relative to the existing dwelling, and will generally enhance the garden setting of the proposal. Accepting the proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest.

59. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the relevant minimum landscaped area development standard.

60. I am satisfied that SEPP 55 has been properly considered, in particular cl 7(1). Given the site's previous residential use, the land is unlikely to be contaminated or to require remediation.

61. I am satisfied a BASIX Certificate has been submitted in support of the proposal fulfilling the necessary requirements of SEPP BASIX. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate.

62. I am satisfied the aims of SEPP Vegetation are achieved since the amended proposal increases landscaped area generally and includes replacement trees for those proposed to be removed.

63. Having regard to the information and evidence before me I am satisfied the amended proposal is appropriate and there are no jurisdictional matters that would prevent the granting of consent. Accordingly, I am satisfied it is appropriate to make the orders sought by the parties and now dispose of the matter under s 34AA(2)(b)(i) of the LEC Act.

Orders

64. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA/2020/0438 for alterations and additions to the existing dwelling upon the land be granted consent subject to the conditions of consent set out in Annexure ‘A’.

3. The exhibits are returned, other than exhibits 1, 4, A and B.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (248507, pdf)

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Decision last updated: 18 February 2021