Deirdra Sutton and Patrick Cusack v Leichhardt Municipal Council
[2006] NSWLEC 337
•1 June 2006
Land and Environment Court
of New South Wales
CITATION: Deirdra Sutton and Patrick Cusack v Leichhardt Municipal Council [2006] NSWLEC 337 PARTIES: APPLICANT
RESPONDENT
Deirdra Sutton and Patrick Cusack
Leichhardt Municipal CouncilFILE NUMBER(S): 11312 of 2005 CORAM: Tuor C KEY ISSUES: Development Application :- Alterations and additions,
impact on heritage significance of conservation areaLEGISLATION CITED: Leichhardt Local Environmental Plan 2000
State Environmental Planning Policy No 1DATES OF HEARING: 31/05/2006 EX TEMPORE JUDGMENT DATE: 06/01/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr B T Goldsmith, town planner
RESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Tuor C
1 June 2006
11312 of 2005 Deirdra Sutton and Patrick Cusack v Leichhardt Municipal Council
JUDGMENT
1 Commissioner: This is an appeal against the refusal by Leichhardt Council (council) of a development application (D/2005/232) for alterations and additions at 24 Grafton Street, Balmain (the site).
The site and its context
2 The site is part of a group of terraces on the northern side of Grafton Street, between Adolphus Street and Ewenton Street. It has a frontage of 6.09 m to Grafton Street and Ewenton Lane, a depth of 31.8 m and a site area of 193.7 sqm.
3 The site is developed with a single storey Victorian terrace with masonry walls and a steeply pitched corrugated roof. The house is similar to the adjoining house at 22 Grafton Street and the pair are the only houses with a single storey frontage in the block. 22 Grafton Street has been modified with a two storey addition at the rear, attics rooms in the roof and a dormer facing Grafton Street. Other houses in the block (28, 20 and 14B) have been altered from single to two storey. The other houses in the block were originally and still remain two storeys.
4 The terraces face an escarpment that drops down from Grafton Street to the White Bay Terminal. There are views from the street to the harbour.
Planning framework
5 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (LEP 2000) and is within a conservation area. Under LEP 2000, consent must not be granted unless the relevant objectives of the plan have been considered.
6 Clause 15 provides heritage objectives:
(a) To protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas and provide measures for their 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.
7 Clause 16(8) provides:
(a) The heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or aboriginal site that would be affected and the contribution it makes to the conservation area, and
Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work or the subdivision of land within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area. With particular regard to:
(b) The compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development.
8 Clause 17 provides objectives for housing which include:
17(a) To provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character.
9 Clause 19(2) permits a maximum floor space ratio (FSR) of 0.7:1. The proposal has an FSR of 0.9:1, which equates to about 13 sq m above the permissible floor area. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1) to this standard.
10 Clause 19(3) provides for a minimum landscaped area. The parties initially disagreed as to whether this standard was met but, with the submission of further information, council did not press this issue.
11 Under Leichhardt Development Control Plan 2000 (DCP 2000), the site is within the Balmain suburb profile and the Gladstone Park Distinctive Neighbourhood. The existing character of the Gladstone Park Distinctive Neighbourhood is described as:
the existing scale of development is predominantly double storey, freestanding houses interspersed with single storey cottages. The neighbourhood has a varied residential character created by different residential styles from different eras….. The architecture in the neighbourhood is further characterised by recent restorations, additions and renovations.
12 The Desired Future Character for the neighbourhood states:
the main intent is to retain the current built response to the topography of the locality….
Preserve the rhythm of the neighbourhood by maintaining lot sizes, housing styles and prevalence of hipped and pitched roofs.
13 The Desired Future Character is to be implemented through the neighbourhood controls.
14 The main control in dispute between the parties was the Building Envelope control which provides:
the building wall height applying to the neighbourhood is 3.6 m with emphasis on roof form. Bulk should be cut by reducing larger buildings into smaller elements with sub roofs. In some locations where two storey terrace forms predominate, a 6 m building wall height is appropriate.
15 Part B of DCP 2000 includes general controls for Building form, Envelope and Siting. The principle of these controls is stated as:
Plan and design new housing, and additions and alterations to existing housing, to maintain and enhance the established scale and character of the streetscape. Match and complement existing built forms, private open space and landscape areas.
16 The development application proposes to retain the main part of the ground floor and its street façade and to add an extra storey to the front and additions to the rear. The application was notified and one objection from Sydney Ports was received and a number of letters of support.
17 A similar application for the site was refused in 2001 (D/2001/461). An application to extend into the roof with a two storey addition to the rear was approved in 2003 and is still valid (D/2003/577). This application would result in a similar form to the alterations and additions at 22 Grafton Street.
18 The applicant has stated that they do not wish to proceed with the approved application due to the limited head heights for the bedrooms in the attic space, concern about how hot these rooms would be and a desire to take advantage of the views to the harbour that would be available from a two storey extension to Grafton Street.
Evidence and issues
19 The Court heard evidence from Mr Robert Staas, the Court appointed heritage expert. Mr Patch, the applicant’s heritage expert and Ms Juliette Churchill, the architect for the proposal, were available to answer questions. Mr Patch’s Statements of Heritage Impact were tendered.
20 The Statement of Issues before the Court contained eight issues. The key issue can be summarised as whether the proposed second storey will have an acceptable impact on the heritage significance of the conservation area.
21 The parties agreed that the existing house was a contributory item within the conservation area. Both Mr Staas and Mr Patch agreed that the section of Grafton Street “has historically been relatively mixed in terms of building stock, through the general terrace house type”. The streetscape has changed over time from being a mixture of one and two storey terraces in the early twentieth century to being predominantly two storeys. However, they drew different conclusions as to whether the alterations of the existing house from a single to a two storey form was acceptable.
22 Mr Staas’ opinion can be summarised as being that:
· the significance of Grafton Street as part of the conservation area is its varied character.
· The purpose of conservation controls is to manage change and to retain “as much as possible original and contributory fabric that adds to the heritage character of the area”.
· The existing house, together with 22 are contributory in the streetscape.
· The two storey addition would reduce the variety and height and would leave 22 as the only single storey house in the block. This change would impact on the contribution of the house as well as the contribution of 22 and adversely impact on the character of the streetscape.
23 Mr Staas concluded that:
I am not persuaded by arguments that other single storey houses in the vicinity had been modified in the manner that is similar to that proposed. In this location, for this house, I consider that the approved development is the best model for change.The proposal represents an undesirable incremental change in this location that would reduce the overall value of the conservation area.
24 Mr Staas commented that if both 24 and 22 were to be two storey, there would be less visual impact on the streetscape but that this would still result in “incremental loss of heritage value in the immediate context”. Mr Staas recommended changes to the design that, if the Court accepted the proposal for an additional storey, would achieve a better streetscape outcome. The applicant agreed to these changes.
25 Mr Patch in his Supplementary Statement of Heritage Impact states:
The proposed amended design will maintain the modulation of the streetscape and maintain expressed evidence of the historic evolution of the built environment of this portion of Grafton Street and of the wider conservation area.
An upper floor will have obvious implications in terms of the “form” of the building, but in this instance, the design is mindful of allowing the existing form to remain legible, at least in terms of the streetscape presentation, and to adopt the prevalent roof form in the street - the transverse ridge gable form.
26 Further Mr Patch stated that the house is “authentic” due to the efforts of the owners in re-establishing the front façade, which had been significantly altered. In his opinion the proposal:
.. affords the owners a useful upper level addition compared to that of the existing approval, which has, apart from functional deficiencies, a degree of distortion of the existing building that is neither distinct nor desirable.
27 Mr Goldsmith, for the applicant, submitted that Mr Staas had been “purist” in his approach and that the proposal needed to be assessed in relation to the conservation area as a whole, which includes all of Balmain, not just the section of Grafton Street. He stated that the proposal’s compliance with the planning controls must be balanced against the heritage constraints as well as the requirements of the owners. He considered that the desire of the owners to avail themselves of a view was a legitimate expectation. He submitted that the proposal complied with the building wall control as the street was predominantly two storey and therefore the 6 m control rather than a 3.6 m control applied.
28 Mr Green, for the council, submitted that the 3.6 m control applied generally in the Gladstone Park Neighbourhood Precinct and that only in some locations where two storey terrace forms predominate would a 6 m height be appropriate. Whilst two storey forms predominate in this area, this was not an appropriate location for a 6 m wall height due to the need to retain the original form of the building, varied streetscape and its relationship with 22 Grafton Street.
29 The parties disagreed on the non-compliance with the FSR control. Mr Green’s submission was that the previous approval permitted 0.9:1 but this resulted in a form of development that has an acceptable heritage impact whereas the current proposal did not and therefore the SEPP 1 objection was not supported. Mr Goldsmith submitted the contrary argument, stating that the exceedance was minor and the heritage impact acceptable.
Findings
30 I accept the opinion of Mr Staas. The terrace at 24 Grafton Street is a contributory item. Part of its contribution, and that of the adjoining building at 22 Grafton Street, is its single storey form that adds to the variety in the streetscape, which was part of its historical evolution.
31 The additional storey would lessen the variety of the street and would leave 22 as the only single storey building in the block. Presently 24 and 22 form a significant element in the otherwise two storey streetscape. The change to 24 from one to two storeys would represent an undesirable incremental change to the streetscape and therefore not achieve the heritage objectives in cl 15 of LEP 2000.
32 While the proposal, particularly if developed with 22, could achieve an acceptable streetscape outcome, it does not achieve an acceptable heritage outcome, as it does not maintain the original and contributory fabric or form of the building.
33 Heritage constraints must be balanced against the need to provide contemporary accommodation and achieve a reasonable development potential envisaged under the planning controls for the site. In the circumstances of this case, there is an approval that provides three bedrooms plus a study and an upstairs and downstairs living area with an FSR that exceeds the control in LEP 2000. This approval better achieves the conservation objectives of LEP 2000 than the proposal while providing a reasonable level of accommodation.
34 While I understand the applicant’s confusion that other single storey houses have been changed to two storeys, I note that some of these occurred prior to the gazettal of LEP 2000. The circumstances of the other developments were not available to the Court and I do not accept that these should be used to justify the proposal for the site. Nor do I accept the need for views or the concerns of the applicant about the limitations of attic accommodation to justify the proposal, particularly as the evidence of Mr Staas is that the existing approval could be modified or re-designed to override some of these limitations.
Orders
35 The orders of the Court are:
(2) The development application for alterations and additions at 24 Grafton Street, Balmain, is refused.(1) The appeal is dismissed.
(3) The exhibits, except Exhibits 2 and 3, may be returned.
- ___________________
- Annelise Tuor
Commissioner of the Court
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