Conventus Pty Ltd v Leichhardt MC
[2006] NSWLEC 458
•11/04/2006
Land and Environment Court
of New South Wales
CITATION: Conventus Pty Ltd v Leichhardt MC [2006] NSWLEC 458 PARTIES: APPLICANT
RESPONDENT
Conventus Pty Limited
Leichhardt Municipal CouncilFILE NUMBER(S): 11344 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and Additions to a dwelling, demolish of garage, contruction of new dwelling, impacts on amenity, overlooking, loss of privacy, overshading, bulk and scale, solar access, private open space and landscaping. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000.
Leichhardt Development Control Plan 2000CASES CITED: Conventus Pty Limited v Leichhardt MC (2005) NSWLEC 127 DATES OF HEARING: 10/04/2006 and 11/04/2006 EX TEMPORE JUDGMENT DATE: 04/11/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr Fraser, barrister
SOLICITOR
Watson & Watson SolicitorsRESPONDENT
Mr Green
SOLICITOR
Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Bly C
11344 of 2005 Conventus Pty Limited v Leichhardt Municipal Council11 April 2006
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to Development Application No. D2005/398, which is for alterations and additions to the existing freestanding single storey dwelling including a new first floor level at No. 34 Smith Street, Rozelle and the demolition of an existing garage and the construction of a new two storey dwelling at No. 36 Smith Street, Rozelle.
2 In March 2005 the Court heard and dismissed an appeal in relation to a similar proposal Conventus Pty Limited v Leichhardt MC (2005) NSWLEC 127.
3 The site at No. 34 Smith Street, comprises a rectangular shaped lot with an area of about 210 sq m. The adjoining No. 36 Smith Street is also rectangular in shape with an area of about 221 sq m.
4 The locality in which the two properties are located consists of a mixture of single storey cottages and two storey terraces. The immediately adjacent houses on the western side of the street are small single storey workers cottages. There is a row of two storey terrace houses opposite the site on the eastern side of Smith Street.
5 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (“the LEP”) and in this zone, dwelling houses are permitted with development consent. It is also located within a conservation area under the LEP. Relevantly applicable development standards the LEP are a maximum floor space ratio of 0.7:1 and a minimum landscaped area of 40% of the site area. Both of these standards are met by the proposal.
6 Clause 7(3) of the LEP requires that certain matters be taken into consideration including the heritage conservation objectives in cl 15(a) and (c). These objectives involve the protection, conservation and enhancement of cultural heritage and the allowance of compatible and viable adaptation and re-use of existing heritage fabric. Undesirable incremental change reducing heritage significance is to be avoided. Clause 7(3) also provides that consent must not be granted unless the consent authority is satisfied that the development is consistent with these relevant objectives.
7 Relevantly applicable controls in Leichhardt Development Control Plan 2000 (“the DCP”) comprise building heights and setbacks and the so-called building location zone. According to the council officer’s report, the site is located in the valley precinct under the DCP wherein a 3.6 m building envelope applies. The existing dwelling retains its current building envelope, which complies with the control.
8 The proposed dwelling also complies with building envelope requirement. Moreover, the architectural drawings show that the rear part of the two buildings complies with a 2.7 m building envelope.
9 Whilst the two buildings are said not to comply with the building location zone which effectively requires a set-back from the rear boundary, there was no suggestion that any other aspect of the development did not meet any other set-back requirement.
10 The application was advertised and objections were received from three adjoining properties, No.s 32 and 38 Smith Street and No. 27 Rosser Street. Matters of concern expressed in these objections involve impacts on amenity, including overlooking and loss of privacy, overshadowing and excessive bulk and scale.
11 The objectors from the neighbouring properties in Smith Street were particularly concerned that the proposal failed to respond to the criticisms and indeed the fundamental reasons expressed by the Court in dismissing the previous appeal.
12 The council officer’s report recommended that the subject application be refused and council agreed with this recommendation citing reasons including non-compliance with the provisions of the LEP and the DCP.
13 At the on-site hearing it was submitted on behalf of the council that there were three issues for the resolution of the Court: the non-compliance with the building location zone and the resulting impacts on the neighbouring properties at No.s 32 and 38 Smith Street, especially in terms of building bulk and scale at the second storey level; the overshadowing and resultant loss of solar access for properties at No. 32 Smith Street and No. 27 Rosser Street; and the adverse impacts on the conservation streetscape as a result of the introduction of a garage door into the façade of the new dwelling.
14 In relation to the overshadowing issue, I agree with the conclusion reached by Ms D Laidlaw, the Court- appointed expert town planner, that the impacts would be very minor. In addition, strict compliance with the building location zone would make very little difference to these impacts. In this context, I note that the relevant parts of the buildings comply with the building envelope requirements of the DCP. I also note that given the orientation, size and configuration of the lots, certain overshadowing is inevitable taking also into account the density of development in this locality.
15 In relation to the garage door issue, Ms Laidlaw argued that the installation of a garage door into the face of the cottage would be inappropriate because this would be atypical of traditional Victorian cottage design. She suggested an alternative design possibly a light framed skillion roofed carport attached to the side of the cottage.
16 Mr Oultram, the applicant’s heritage consultant accepted that the suggested alternative might be a possibility but disagreed that the proposal would be unacceptable. He explained that the overall form and style of the cottage would be complimentary to the conservation area and would form an appropriate in-fill between the existing cottage on the site and the existing cottage at No. 38 Smith Street. Also, the proposed single garage door would be a relatively small element in the façade and its presentation would be effectively softened by being under the full width veranda and being behind the proposed picket fence and gate. He pointed out that there are numerous other garage doors of various styles and materials in the immediate and surrounding locality.
17 In this regard, I agree with Mr Oultram for the reasons he has given. I would add that none of the adjoining buildings are heritage items or are especially sensitive. I also note that this is not a pristine conservation area; that is to say, there are numerous modern and in my view some clearly inappropriate building designs in the street. Whilst this is not to suggest that further inappropriate intrusions should be permitted, conservation areas should not be quarantined from appropriate and reasonably sensitive modern architectural change. In my view the proposed garage meets this test.
18 The main issue in the case is perhaps best described by the relevant paragraph in the council officer’s report at page 9:
The proposed density and landscaped area of the development complies with the development standards contained in LEP 2000, however, the development is not considered to be complimentary and compatible with the pattern of surrounding buildings and extent of landscaping in the rear yards of adjoining properties, in particular, the location of the rear built form at both ground and first floor levels.
Further, the proposal does not take into account several of the controls contained in DCP 2000, including the building location zone and solar access controls. Furthermore, the depth of the proposed rear yard landscaped areas for each dwelling is limited and would not allow for substantial tree planting whilst also retaining the private open space.
19 As already indicated, the objections of the two adjoining residents in Smith Street were mainly in relation to the bulk and scale of the rear-most first floor part of the two dwellings. This would be apparent from the rear yard of Ms Robertson’s property at No. 32 and the rear yard and rear terrace area of Mr Kanofski’s property at No. 38.
20 In their objections they reminded the Court of the considerations and conclusions that were reached in relation to this issue in the published judgment in relation to the previous application. At par 21, I concluded that there is no reason why the site should not be developed with two storey buildings but that the introduction of such buildings needs to be done with great care. At par 24, I noted that the proposed building would be essentially no higher than the existing building at No. 38 but that because the building footprint is extended beyond the rear building line, I would have expected a more sensitive approach to the design of this part of the proposed building.
21 At par 27, I commented that the stepping-in of the two proposed cottages at the side and towards the centre tended to push building bulk towards the rear with building bulk consequences. Finally, at par 36 I concluded that the consequences of the bulk and scale of the rear-most aspect of the two houses was such that the application should be refused.
22 The relevantly applicable controls for this development are to be found in part B1.2 of the DCP. The applicable guidelines suggest that new buildings and alterations and additions need to respect the proportions of neighbouring developments, the streetscape and the amenity of neighbouring residents.
23 In relation to the building location zone, the development or an extension to an existing dwelling is to be located within his area. In the previous judgment, the Court considered the manner in which the building location zone is to be determined and concluded relevant to that application that:
- In the circumstances, I believe that a BLZ line extending approximately in line with the rear of the building at No. 38 and parallel to the rear boundary of the site is a fair and reasonable indication of an appropriate footprint subject to meeting the objectives of the control.
24 An examination of the drawings tendered in this appeal show that the proposed new dwelling at No. 36 projects into the zone at ground floor level by about 600 mm for a length of just under four metres out of the site’s width of 8.5 m. The extension to the existing dwelling at No. 34 involves a projection into the building location zone at ground floor level of about 1 m for a width of about 5.5 m out of that site’s width of about 8.4 m. Similar projections occur at first floor level for both properties.
25 The objectives of the control are to be found at pg B7 where it is acknowledged that building can occur outside the building location zone subject to the justification that the proposed building is appropriate. Issues which must be addressed in justifying a building footprint outside the building location zone include:
- Visual aspect of the bulk and scale as viewed from adjoining properties;
- Amenity to adjacent properties (i.e. sunlight, privacy and views);
- Location and retention of existing significant vegetation;
- Compliance with applicable statutory controls including floor space ration and minimum landscaped area;
- The existing streetscape and character and scale of surrounding development;
- The adequacy of the size, dimensions, privacy and solar access of private open space for outdoor recreation and landscaping.
26 Plainly the building location zone requirement has purposes other than the protection of neighbour amenity. It is only the first two of these issues that need to be addressed and that involve neighbour amenity that were said by the council to have been infringed. The remaining four issues were not of concern and as argued by the applicant, because they are met and indeed not just met are exceeded and are supportive of the proposal. Whilst I accept that the applicant’s submission in this regard is relevant and should be given weight, the requirements in relation to neighbour amenity must be given proper consideration.
27 In my previous judgment at par 18, I explained in relation to what would be an appropriate building footprint in response to the building location zone that:
- Whilst the proposal clearly exceeds this footprint, I would not have rejected it simply on this basis. This is because the proposed provision of backyard private open space is essentially satisfactory being similar to that at No. 38.
28 I would add to this conclusion that the present courtyard and landscaping arrangement for each of the two proposed dwellings is in my opinion entirely satisfactory.
29 In terms of infringements beyond the building location zone, the two proposed buildings present slight improvements by comparison with the previous proposal. In her report, Ms Laidlaw noted that the building location zone non-compliance was similar to the previous non-compliance except for a minor reduction in the length of No. 36 and that this non-compliance should not cause the application to fail.
30 In the circumstances I would, as I did on the previous occasion, similarly not reject the present proposal simply on the basis of non-compliance with the building location zone. The proposal’s open space provision more than complies with the requirements of the DCP and as I have already indicated, the private open spaces for both dwellings is satisfactory.
31 This brings me to the remaining concerns of the neighbours, that being the bulk of the buildings at the rear and in relation to No. 38 the loss of out look. It was submitted on behalf of the council that built form in localities such as this should not have two full stories at the rear so as to achieve a “fine grain” of design as required by the DCP. As for the building location zone, it was submitted that near enough to compliance is not good enough, especially when there are amenity impacts on neighbours who should be able to expect compliance.
32 The applicant submitted that the non-compliance with the building location zone was minimal. Also because the building more than complies with the building envelope control and taking into account the proposed significant side setbacks when zero setbacks are permissible, this points to the acceptability of the proposal. More particularly, in relation to No. 38, the setback at first floor level is 2.25 m and the gutter line is at a similar level to that of No. 38.
33 It was also stressed that the rear terrace at No. 38 extends some 2.6 m beyond the building location zone and has a heavily timbered pergola that presents as a substantial built form. Whilst the outlook from No. 38 to the south will be affected, its outlook to the south-east and east will be unaffected. More over the outlook from No. 32 would be little affected by the proposal only being able to be seen from viewpoints deep into its backyard where such outlook towards buildings is not uncharacteristic of the area.
34 In her report, Ms Laidlaw noted that the amendments incorporated in the current design have substantially resolved the visual bulk issues relating to the rear of the property. In this regard she particularly notes compliance with the fundamental controls of the LEP and the DCP and how issues of bulk have been alternatively addressed through increased setbacks, especially at first floor level and reduced overall height. She also notes how No. 32 experiences poor solar access at the rear as a consequence of lot orientation, topography and the south-eastern orientation of its living areas. Strict compliance with the building location zone would make little difference.
35 Consequently, in this context and taking into account the now proposed architectural modulation incorporated into the design, I accept that the proposed buildings exhibit the requisite degree of sensitivity to their neighbours. Plainly the outlook from the deck at No. 32 will be affected, somewhat more than might be the case with a single storey building on a wider and closer permissible footprint that would be less than one metre lower than that proposed but I do not accept that this difference should be determinative of the application.
36 As for the submission that the built form at the rear is simply two storeys and is not responsive to the “fine grain” design approach that is required in the conservation zone, an examination of the plans reveals a considerable degree of architectural modulation and interest that is in my view sufficiently responsive to such a requirement. As I concluded in my previous judgment, whilst the introduction of two storey buildings needs to be done with care, I now accept that this has been achieved.
37 In all of the circumstances, I have therefore decided that the appeal should be upheld and conditional development consent granted. I will retain exhibits 4, 5 and A.
38 In relation to the conditions, I have decided that condition 2(1) that requires the deletion of the garage and its redesign will for the reasons I have given be omitted. In its place will be the condition initially proffered on behalf of the council that the vehicle crossover to No. 36 Smith Street shall be constructed by the provision of a bitumen footpath and a stone kerb to match the existing arrangement.
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- T A Bly
Commissioner of the Court
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