Conway v Leichhardt Municipal Council

[2007] NSWLEC 269

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Conway v Leichhardt Municipal Council [2007]  NSWLEC 269

PARTIES:
APPLICANT
Vashti Elizabeth Conway

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):     10756  of        2006

CATCHWORDS:         :- alterations and additions to an existing dwelling - overshadowing

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000

CASES CITED:

CORAM:          Brown C

DATES OF HEARING:            16/01/07, 9/03/07, 22/03/07, 14/05/07

JUDGMENT DATE:    18 May 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr A Pickles, barrister
SOLICITORS
yates beaggi lawyers

RESPONDENT
Ms J Reid, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

18 May 2007

10756 of 2006  Vashti Elizabeth Conway v Leichhardt Municipal Council

JUDGMENT

1. COMMISSIONER: This an appeal against the determination of Leichhardt Municipal Council (the council) of Development Application D/2005/480 for alterations and additions to an existing dwelling at 27 O’Neill Street, Lilyfield (the site). 

   The site

2. The site comprises Lot 15 and Lot 16 in Sec H of DP 1474.  It is 309.58m2 in area and has a frontage of 9.754m to O'Neill Street, 9.804m to O'Neill Lane at the rear, an eastern boundary of 31.293 and a western boundary of 32.258m.

1. The site presently accommodates a single detached storey brick cottage.  A single garage with access from O'Neill Lane provides on site car parking.  No significant vegetation is present on the site.

1. The locality is predominantly residential with Darling Street Anglican Church located to the east at 31 O'Neill Street.

   The proposal

2. The proposal involves:

   demolition of part of the existing dwelling and the existing single storey garage, and the existing roof.
   the retention of the front four rooms of the existing dwelling.
   erection of a two storey extension at the rear of the retained portion of the existing dwelling and the construction of a first floor above the retained section of the existing dwelling in the form of an attic or "room in the roof style".
   a double garage at the rear of the property accessed from O'Neill Lane.
   an in-ground swimming pool at the rear of the property between the proposed garage and the western boundary.

Relevant planning controls

1. The site is located within the Residential zone under Leichhardt Local Environmental Plan 2000 (LEP 2000).  The proposed use is permissible within this zone.  Clause 19(2) provides for a floor space ratio (FSR) of 0.5:1.  The proposed development has an FSR of 0.764: 1 and an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) has been provided.  Clause 16(8) provides requirements for Conservation Areas as the site is within the Lilyfield Conservation Area.

1. Leichhardt Development Control Plan 2000 (the DCP) provides requirements for a Heritage Conservation (Part A7.0), Building Location Zone (BLZ) (Part B1.2), Solar Access (Part B3.1) and Laneway Development (Part B4.3). 

   The issues

2. The council filed an amended Statement of Issues containing 6 individual issues and number of sub issues that could not be addressed through conditions of consent.  The issues relate to bulk and scale (Issue 1), the breach of the FSR development standard (Issues 2 and 3), heritage and streetscape (Issue 4) and amenity impacts relating to bulk and scale, solar access to the adjoining property and height of the proposed garage (Issue 6). The public interest and issues raised by objectors (Issue 6) were considered as part of these issues.

1. Following the submission of amended plans Mr Terry Byrnes for the applicant and Ms Deborah Laidlaw for the council provided a joint town planning report.  Ms Laidlaw agreed that the issues had been satisfactorily addressed with the exception of the loss of solar access to the rooms of the adjoining property at 23 O’Neill Street.  She stated that the interior of the dwelling is already extremely dark and that the only area that achieves daylight and solar access is the extension at the rear of the dwelling.  This includes the kitchen and is served by a large glass door/window facing the site.  With the variations sought to the FSR standard and also taking into account the BLZ, Ms Laidlaw concludes that there should be no material additional overshadowing on this area.  If this cannot be achieved she could not support the SEPP 1 objection to the breach of the FSR development standard.

2. Mr Byrnes, on the other hand states that the extent of overshadowing to the windows in question relates only to a period of time between 9 am and 10:30 am in mid winter.  In his opinion, the proposed development would not result in any measurable or significant increase in shadowing to the windows on the adjoining property.

1. Following a site view and an inspection of the property at 23 O’Neill Street and because of the narrowing of the issues in the proceedings, I advised the parties that the loss of solar access to the adjoining property was unacceptable because of the already unacceptable levels of solar access to the property.  The shadow diagrams indicate that all sunlight will be lost from these windows by around 10:30 a.m. irrespective of any development on the site.  The rest of the dwelling receives very little solar access in mid winter.

1. I agree with Ms Laidlaw that the dwelling at 23 O’Neill Street has poor solar access and that the little solar access the dwelling achieves should be protected.  For this reason there is merit in Ms Laidlaw's conclusion that there should be no material additional overshadowing on this living area, even though solar access to the area in question is not specifically addressed in DCP 2000.

2. An adjournment was sought by the applicant to prepare amended plans that did not increase the overshadowing on 23 O’Neill Street.  The council opposed the adjournment as the applicant had declined an undertaking for costs however as costs can be addressed through a separate Notice of Motion before a judge, the adjournment was granted.  The following directions were made:

   1. The applicant is to file and serve further amended plans and shadow diagrams (in plan and elevation form) and also information upon which the shadow diagrams are based to allow verification on or before 24 January 2007 together with a cheque for the notification fee of $550 in favour of the council.

   2. The respondent is to publicly notify the amended plans between 7 February 2007 and 21 February 2007 provided the plans and notification fee are received by 24 January 2007.

   3. The respondent is to notify the applicant if there are any additional issues raised by the amended plans by 28 February 2007.

   4. Leave is granted to approach the Manager Listings for a mention at 9 a.m. on a day convenient to the parties and the Court to consider the amended plans as soon as possible after 21 February 2007 but before 2 March 2007.

3. With the non compliance with the directions to file and serve amended plans and shadow diagrams, further mentions and communications were held with the parties on 9 March 2007, 22 March 2007, 16 April 2007 and 14 May 2007 to progress the matter.  At the last mention, amended plans were tendered that did not increase the overshadowing on 23 O’Neill Street.

1. As part of the notification of the amended plans, two submissions were received. Dr Chris Roberts and Judy Coombes from 5 Justin Street objected to the potential overlooking from the windows at the rear of the second storey that accommodates the master bedroom. Ms Emilia and Mr Robert Sommer from 23 O’Neill Street objected to the loss of sunlight, the setback of the proposed pool and the potential loss of an existing tree.

1. In response to these concerns, I accept that the separation distance of greater than 15 m between the second storey addition and 5 Justin Street adequately addresses the issue of potential overlooking.  The question of loss of sunlight to the property at 23 O’Neill Street was the subject of the amended plans and I accept the conclusions of the council that the proposed development does not alter the existing sunlight received by this property.  The nil setback of the proposed swimming pool, in my view, is acceptable in this situation because of its location at the rear of the site and the relatively small lot sizes in the area.  A small setback to the common boundary would achieve no practical difference to the proposed nil setback.  I agree that the existing tree near the common boundary should be retained if possible and I note the applicant’s agreement to a condition to provide for a fence design to protect the root system of the tree.

2. The council also sought additional conditions to address the amended plans.  The conditions in dispute relate to Deferred Conditions B, D, E, G and H.  As I understand, the applicant generally objected to the imposition of the requirements as Deferred Conditions rather than Operational Conditions but specifically objected to Deferred Conditions G and H. 

1. Deferred Condition G requires the removal of a significant amount of glazing from the windows at the rear of the second storey that accommodates the master bedroom to protect the adjoining property from overlooking.  The amended proposal provides for this elevation to include 5 full height panels of glazing.  Considering the use of this room and its relationship with 23 O’Neill Street, I accept that the level of glazing is excessive however I see no significant benefit in reducing the amount of glazing to that suggested by the council.  In my view, the three central panels can be glazed and the remaining outside panels should be constructed of a similar material to the remainder of the first-floor extension.

2. Deferred Condition G requires the proposed flat roof above ground floor living area to be replaced by a roof with a pitch of 18° to more closely resemble similar roof styles in the area and effectively prohibit its use as an external deck.  With the benefit of the site view, I am satisfied that the proposed roof form is acceptable when considered in the context of the local area.  Similarly, I am satisfied that the roof would not be easily used as an external deck and that if this was envisaged at a later date then a separate development application would need to be lodged and considered.

1. As there are a number of modifications to be made (although I accept that they are not overly significant) but taking into account the difficulties experienced in the preparation of the amended plans I accept the council's submission that these matters are more appropriately addressed as Deferred Conditions.

1. While there was general agreement between the parties on the condition to deal with the retention of the existing tree on 23 O’Neill Street, there was disagreement on the specific wording of this condition.  I have considered both versions of the proposed condition and have generally adopted the version proposed by the council although I have allowed some flexibility in the assessment of the root zone and construction technique if endorsed by an experienced Tree Surgeon – Arborist (see Condition 1A).

2. The orders of the Court are:

   1) The appeal is upheld.

   2) Development Application D/2005/480 for alterations and additions to an existing dwelling at 27 O’Neill Street, Lilyfield is approved subject to the conditions in Annexure A.

   3) The exhibits are returned with the exception of exhibit A1.

   _____________

   G T Brown

   Commissioner of the Court