Cawsey v Leichhardt Municipal Council

[2005] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION:

Cawsey v Leichhardt Municipal Council [2005] NSWLEC 194

PARTIES:

APPLICANT
Kim Cawsey

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

11118 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of an existing dwelling and two large trees - construction of a new three-storey dwelling

LEGISLATION CITED:

Leichhardt Local Environmental Plan 2000
State Environmental Planning Policy No. 56 - Sydney Harbour and Tributaries
Sydney Regional Environmental Plan No. 22 - Parramatta River
Leichhardt Development Control Plan

CASES CITED:

Cawsey v Leichhardt Municipal Council [2004] NSWLEC 135

DATES OF HEARING:

24,25/02/2005 and 05/04/2005

 
DATE OF JUDGMENT: 

04/28/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mrs Mary-Lynne Taylor, solicitor
SOLICITORS
Norman Waterhouse

RESPONDENT
Ms J Reid, solicitor
SOLICITORS
Pike Pikle & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

28 April 2005

11118 of 2004 Kim Cawsey v
Leichhardt Municipal Council
JUDGMENT


Introduction
1 This appeal relates to a development application for the demolition of an existing dwelling house and two large trees and the construction of a new three-storey dwelling at 104 Louisa Road, Birchgrove. The dwelling is to extend other three levels, having a two-storey presentation including a double garage door to Louisa Road plus a small rooftop terrace. When viewed from the Parramatta River the dwelling will appear as an elevated three-storey building. It will be of painted cement rendered masonry with pitched and skillion metal deck roof forms.

2 The rectangular shaped site comprises two allotments, Lots 1 and 2, DP 700405. It has a frontage to Louisa Road of 15.24 m and an area of 478.2 m. It steps up approximately 10 m from the Parramatta River in a series of garden terraces to the building podium area.

3 The existing Tuscan style dwelling was constructed in 1882 and since that time has been substantially modified. It has some historical significance because the celebrated glass stainer, John Lamb Lyon and his wife Elizabeth were former occupants, although it no longer presents as the house in which Lyon lived. Despite this a six-panel stained glass window attributed to him exists in the Louisa Road elevation of the dwelling but not in its original location.

4 The adjoining property at 100 Louisa Road is a three-storey semi-detached older style dwelling, displaying original features such as iron lacework, a steel picket fence and bull-nose veranda. The adjoining house at 106 Louisa Road is a two and three-storey brick dwelling the third storey of which is an addition to the original house.

5 The locality comprises a mixture of old and new dwellings with many of the older houses having been modernised, resulting in considerable diversity of architectural form. There is a marked degree of diversity in age, colour, form, presentation and landscape treatment. Houses in this part of Louisa Road generally are built to the topography and are likely to have a three to four-storey presentation to the harbour and a one or two-storey presentation to the street.

Statutory provisions
6 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 ("LEP 2000") in which zone the proposal is permissible with development consent. Whilst the existing house is not identified as heritage item, it is included in the extensive Balmain peninsula conservation area. The conservation area applies to a wide range of land uses and building types.

7 There are some heritage items in the vicinity but not adjoining the site. Clause 16(7) and (8) of LEP 2000 requires an assessment of the effect and compatibility of any development proposal on the heritage significance of such items and the conservation area and consent must not be granted until such time as these assessments have been carried out.

8 Clause 7(3) of the LEP provides that consent must not be granted for development unless the objectives of the plan as are relevant to the proposal are taken into consideration and that the proposal is consistent with those objectives. Particular attention was drawn to the following objectives contained in cl 15 of the LEP:

(a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscape, trees, potential archaeological sites and conservation areas, and provide measures for the conservation,

(b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines,

(c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items,

(d) to allow compatible and viable adaptation and reuse of the fabric of heritage significance.


9 LEP 2000 sets a maximum floor space ratio of 0.7:1 and the proposal complies with this requirement. It also sets a minimum landscaped area of 40% of the site area and a minimum soft landscaped area of 10% of the site area. The proposal exceeds these requirements. There is a 22 m foreshore building line and the proposed dwelling is to be positioned behind this line.

10 Also applicable to the site is Leichhardt Development Control Plan (“the DCP”).

Advertising and residents’ views
11 The application was advertised and adjacent properties notified resulting in a number of submissions being received. These submissions include 20 letters of objection and three letters indicating support for the proposal. Matters of concern raised in the letters of objection include:
• the existing house which is to be demolished has sufficient heritage significance to warrant its protection;
• the existing house makes a positive contribution to the conservation area and its loss and would be significant;
• the proposed new house is inappropriate for the site and would be inappropriate in the conservation area;
• significant trees are to be removed from the site should be retained;
• necessary excavation works could adversely impact on the adjoining property at 102 Louisa Road;
• the proposed garage would be inappropriate in the streetscape and would result in the loss of one street car parking space;
• the adjoining properties would suffer a loss of privacy from proposed terraces.
  
12 The hearing began on site and the Court heard from the following residents:
• Ms S Sall of 102 Louisa Road.
• Mr R Sullivan of 102 Louisa Road.
• Ms K Holland of 60 Louisa Road.
• Ms S Cadby of 109B Louisa Road.
• Mr V Drewvukelic of 74 Louisa Road.

• Ms D Gardner of 26 Wharf Road

13 These residents elaborated on the above matters, expressing particular concern about the significance of the existing house and the historic character of Louisa Road, some say is effectively their backyard. The site inspection particularly enabled the Court to understand the concerns about demolition and excavation associated with the proposed new house and its relationship to 102 Louisa Road.

14 The residents also referred to the letter of objection from Mr D Ellsmore, a heritage conservation architect. The letter argues the significance of the existing house, pointing out remaining features attributable to John Lamb Lyon, including the stained glass window.

15 The letters of support point out the architectural quality of the proposal, and its appropriate bulk and scale, as a result of being less bulky than its neighbours. It will fit well in the diverse Louisa Road streetscape. The provision of view corridors to the harbour, the removal of inappropriate trees are other positive features.

Council's decision
16 Despite the council officer's comprehensive supporting report ("the planner's report") the council decided to refuse the application for reasons relating to:
• excessive floor space ratio;
• unacceptable bulk and scale;
• exceedance of building envelope controls;
• heritage significance;
• unsatisfactory landscaping;
• adverse impact on streetscape;
• removal of trees; and

• privacy impacts.

Expert evidence
17 Evidence was provided by the Court appointed expert Mr Robinson who is an architect and town planner. Other evidence was provided by:
• Mr A. Simpson - civil engineer
• Mr G. Mostyn - civil engineer
• Mr K. Pike - architect
• Mr A. Morton - arborist

• Mr D bliss - geotechnical engineer

18 Also provided was a statement of environmental effects prepared by Mr B. Threlfo a town planner and a heritage impact statement prepared by Mr R. Edgar an architect and heritage consultant. As a result of concerns regarding site contamination and remediation and environmental site assessment and remediation action plan was also prepared.

The issues
19 Having considered all of the evidence, the amendments to the proposal and having taken a view of the site and its environs and noting that the proposal now complies with all applicable standards and development standards, the remaining issues for the determination of the Court are:
(a) Whether the demolition of the existing house would have an adverse impact on the conservation area.
(b) Whether the proposal would have an excessive bulk and scale and would have an adverse impact on the Louisa Road streetscape.
(c) Whether the proposal would have an excessive bulk and scale and would have an adverse impact in terms of views from the Parramatta River waterway.
(d) Whether the works associated with the proposal might have an adverse geotechnical impact on the adjoining property at 102 Louisa Road.

Geotechnical considerations
20 Irrespective of the heritage or conservation significance of the existing dwelling house at No. 102 Louisa Road its structural security is an important consideration given its proximity to the proposed excavation of the site. However having considered the evidence of the two engineers who provided advice in relation to this matter I see no reason why, subject to appropriate conditions and excavation techniques that the excavation will not be able to be undertaken without unreasonable risk.

Conservation considerations
Demolition of the existing house
21 In his letter to the council Mr Ellsmore explained that it is regrettable that consent must be sought for the demolition of such a substantial house with an important history. He was critical of the heritage impact statement suggesting that not all traces of its heritage significance have been removed, and remaining features of the house are directly attributable to John Lamb Lyon who has provided an enormous artistic legacy to New South Wales.

22 The National Trust of Australia (New South Wales) has advised that it objects to the demolition of the house, expressing concern that demolition might adversely affect the structure of the adjoining house at 102 Louisa Road. This property comprises an integral part of the streetscape and contributes along with No. 104 to the quality of the streetscape in Louisa Road. If demolition is to occur, the building should be appropriately recorded.

23 The NSW Heritage office considered a nomination for the heritage listing of this property and following its investigation decided not to recommend the making of an interim heritage order. By way of comment it was noted that the stained glass window is a highly significant item and that its appropriate conservation and public interpretation should be a condition of any future approval. Also in relation to any proposals for the property consideration should be given to any impacts on the setting, streetscape and archaeology of the site.

24 The Powerhouse Museum has advised that because of the Lyon windows' significance they would be prepared to build it into a new permanent decorative arts and design gallery. The gallery will show the best of the decorative arts collection and the window will benefit from being displayed in conjunction with other similar material. Some urgency was expressed in the need for a decision about the window.

25 Mr Robinson noted the history of the house, including the modifications that have taken place over a long period of time and agreed with the finding of Talbot J, in Cawsey v Leichhardt Municipal Council [2004] NSWLEC 135 that the heritage significance of the existing house is not high, having regard to the substantial modifications that have taken place. These modifications include the combination of the two houses into a single residence and its "Mediterraneanisation" including extensive internal alterations removing most of its significant into area fabric and conditions. The house no longer displays its mid-Victorian origins and cannot be considered a good or representative example of a house of this era. Its retention is, in the circumstances, not warranted.

26 Despite the arguments to the contrary I agree with Mr Robinson's reasoning as to the residual significance of the house and accept that it no longer has sufficient significance to justify refusal of the application. However I do agree, that given its history it should be appropriately recorded and the Lyon window should be conserved.

27 For similar reasons Mr Robinson explained that the limited residual heritage significance of the house means that its contribution to the conservation area was similarly limited and as a result, demolition will not adversely affect the heritage significance of the conservation area. I also agree with Mr Robinson's conclusion here and I am satisfied that objectives (a) and (b) of the zone are met.

Impacts on streetscape
28 Mr Robinson in taking into account the variety of housing in the area generally, in terms of age and character, believed that the new house will be consistent in height, scale and character with this existing development and will be appropriate in the conservation area. He was also of the opinion that the new house would make an appropriate contribution to the conservation area and the streetscape but nevertheless agreed that that this contribution was probably less than the contribution that the existing house makes.

29 Leaving aside the proposed roof deck and associated roof structure, and having carefully considered this aspect whilst viewing the street, I agree with Mr Robinson that this will be a well-mannered modern building that will sit comfortably with its neighbours in Louisa Road.

30 However I do not agree with him as to the difference between the contribution that the existing house makes by comparison with that of the proposed house. Bearing in mind that this aspect is to some degree subjective, it is plain that the two buildings make different contributions to the conservation area because of their different characters but given the mixed character of the area I do not accept that these differences are critical.

31 In these circumstances I am satisfied that the development is consistent with the objective in cl 15(c) of the LEP that seeks to prevent undesirable incremental change. Conservation areas are not static and it is clear from an examination of the applicable development control table in the LEP that change is permissible. In the circumstance I have not been persuaded that this proposal represents an undesirable change to the conservation area.

Impacts on the waterway
32 Mr Robinson refers to State Environmental Planning Policy No 56 - Sydney Harbour and Tributaries, Sydney Regional Environmental Plan No. 22 - Parramatta River the LEP and the DCP, noting that the objectives of these instruments whilst expressed differently essentially require a careful consideration of the visual impact of any development proposal on the affected waterway. In this context he explained how the proposed house is to be appropriately articulated and would be consistent in bulk and scale with the houses on adjoining and nearby allotments and in the neighbourhood generally when viewed from the Parramatta River and its foreshores.

33 Having examined the plans and the model of the proposed house and having been given the opportunity to view from the river the design and character of existing development on the north side of Louisa Road, and taking particular note of its apparent height bulk and scale, I cannot but agree with Mr Robinson.

Conditions
The entrance and front gate
34 The proposed entry to the new house is to utilise a masonry wall and associated open slat gate on the Louisa Road frontage adjacent to the garage. A low open metal picket fence will occupy the remainder of the frontage. As referenced in the planner’s report, council's architect planner advised that the masonry wall and the slat gate are not personable, closing rather than opening the street connection and consequently should be deleted. Instead the low picket fence should continue across the frontage, incorporating a sliding low gate. This would ensure consistency with the provisions of Pt B1.6 of the DCP which requires that front garden areas should act as transitional spaces between public street and private dwellings to improve security and contribute to the streetscape.

35 The glazed front door of the new house will facilitate views into the house through it to the Parramatta River. The proposed wall and gate will provide some privacy for the occupants but oblique views into the house will still be possible. Whilst I recognise this design feature, a similar version of which was approved nearby, I nevertheless accept the opinions of the council officers and Mr Robinson to the effect that the public interest would be better served by a closer response to the requirement of the DCP.

36 Whilst Mr Robinson believed this to be a minor issue and did not consider it essential to amend the proposal he nevertheless recommended a compromise to drop the height of the gate to 1.2 m and retain the section of the wall proposed with the name plate, interpretive panel and letter box. Taking into account the inconsistent application of this requirement of the DCP but still giving it the weight it deserves I have decided to adopt the approach suggested by Mr Robinson and the condition is to be amended accordingly.

The roof deck
37 The house design includes the provision of an upper level roof deck with an associated roof structure that projects above the main roof. The deck has an area of about 6 sq m and facilitates an outlook over Louisa Road and beyond to the south. According to the architect the deck and associated roof would provide a simple and elegant articulation of the roof massing and is a contemporary version of roof elements in a number of houses in this locality. However the council officer’s report notes that the structure would be visually obtrusive and inappropriate in the immediate built context and would be detrimental to the streetscape.

38 Mr Robinson did not agree that this deck should be deleted from the design. He commented that it would provide a beneficial break in the front and rear roof planes. He did acknowledge however that it would be a little high and bulky when viewed from the street but there are other examples of large dormers and skylights of comparable scale.

39 Whilst it may be correct that the proposed roof form would benefit from some articulation I do not agree that what is proposed would be satisfactory. Instead, having viewed the photomontage I agree with the council officer and am satisfied that it would be too high and too bulky and in the absence of a more sensitive design it should be omitted.

Rear balustrades
40 The council officer’s report recommends that the proposed glass balustrades on the rear decks should be changed because glass balustrading can be highly reflective and can read as a solid. Mr Robinson supports this change.

41 Whilst inspecting the site I was shown a number of other properties where glass balustrades are utilised. It was pointed out that the balustrades proposed are associated with open balconies and terraces and will be well lit from behind thus reducing the likelihood of them having an opaque appearance. I agree and would not support the condition to this effect.

Conclusion
42 Whilst there was a great deal of public objection to this proposal especially regarding the demolition of the existing house, I have not been persuaded that its limited heritage significance and its contribution to the conservation area are sufficient to deny the application.

43 In his judgement Talbot J found the previous house designed for this site to be overly assertive as well as being too large and bulky. He also said that he was not prepared to grant consent for the demolition of the existing house until a suitable acceptable replacement is identified. In my view this significantly amended design resolves these concerns and will be appropriate in its context whether viewed in Louisa Road or from the waterway.

44 In dealing with this application I was greatly assisted by the comprehensive and carefully reasoned report of Mr Robinson which report assesses the issues and finds no fundamental problems with the proposal. For the most part I accept his conclusions and for the reasons given above I find that the application warrants approval.

45 Finally, there were a number of objections to various conditions including several deferred commencement conditions. Several of these have already been dealt with in this judgement. Other objections as contained in Exhibit R have also been dealt with resulting in a number of minor changes to the conditions.

Orders
46 Therefore the orders of the Court are:


1. The appeal is upheld.
2. Development Application D/2004/414 for the demolition of existing structures, site remediation and the construction of a new three-storey dwelling at 104 Louisa Road, Birchgrove, is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit A is retained.

__________________
T A Bly
Commissioner of the Court
rjs/ljr