Donnelly v Leichhardt Municipal Council

[2005] NSWLEC 381

Land and Environment Court

of New South Wales

CITATION:

Donnelly v Leichhardt Municipal Council [2005] NSWLEC 381

PARTIES:

APPLICANT
Susan Donnelly

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

11073 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Demolition of an existing semi-detached dwelling - replacement of three level semi-detached dwelling - exceedance of floor space ratio - heritage impacts on the site - excavation impacts - view intrusions - public interest

LEGISLATION CITED:

Leichhardt Local Environmental Plan 2000
State Environmental Planning Policy No. 55 - Remediation of Land
State Regional Environmental Plan 23 - Sydney and Middle Harbours
Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004

DATES OF HEARING:

01/02/2005, 10/03//2005 and 06/06/2005

 
DATE OF JUDGMENT: 

07/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms H Irish, barrister
Instructed by: Mr B T Goldsmith
of B T Goldsmith Planning Services

RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

15 July 2005

11073 of 2004 Susan Donnelly v
Leichhardt Municipal Council
JUDGMENT

Background

1 This appeal is against council's refusal of a development application to demolish an existing semi-detached dwelling/double garage and replace it with a new three level, semi-detached dwelling, situated at 9 Gallimore Avenue, East Balmain.

2 For the appeal a number of issues were initially identified including:

• exceedance of the floor space ratio (FSR) allowance,
• heritage impacts of the building, site and Balmain heritage conservation area,
• excavation impacts,
• view intrusions,
• public interest.

3 In order to resolve these issues the parties agreed to Mr S Harding being the Court-appointed expert (CAE) for planning matters. Also for Mr R Staas being the Court-appointed expert (CAE) for heritage matters.

The site

4 The site is a hatchet shaped lot located on the north-eastern side of Gallimore Avenue and has a main area of approximately 600 sq m. It is connected to Gallimore Avenue by a small additional area of accessway comprising 42 sq m.

5 The site slopes down from Gallimore Avenue to the Darling Harbour waterfront. Within this overall slope there are five separate levels, with a sandstone cliff being located on the lower levels near the waterfront.

6 The existing dwelling is a Victorian/Federation era semi-detached dwelling, that adjoins a similar semi, known as 11 Gallimore Avenue. This site contains two large trees, a Ficus bengamina located at the rear of the dwelling at the base of a rock shelf and an Acer negundo (Box Elder) located on the southern side of the dwelling.

7 The adjoining property to the south-east at 7 Gallimore Avenue contains a sandstone cottage which is built to the shared boundary and this elevation contains windows. A swimming pool and cabana are located at the lowest level.

8 The proposed new building is to be built over 4 levels and comprises:

• a pool, spa seat and covered area at the lowest level,
• lower ground floor containing in drying room, laundry, study, 3 bedrooms, 2 bathrooms, dressing room and veranda,
• the ground floor containing a bedroom and dressing room, together with the main living rooms,
• the upper ground floor comprise a double garage accessed from Gallimore Avenue and a service area and entry forecourt.

9 The proposed garage is to be set back 2.45 m from Gallimore Avenue, adjacent to the south eastern boundary with 7 Gallimore Avenue and be set back 6.5 m from the north-western boundary with 11 Gallimore Avenue.

10 The proposed dwelling is to be built to the north-western boundary with 11 Gallimore Avenue for its length, relying on the existing party wall. The south-western wall of the dwelling was proposed to be set back 900 mm from the Gallimore Avenue.

Planning controls
Leichhardt Local Environmental Plan 2000 (LLEP)

11 The site is within the Residential Zone and the proposal is permissible with development consent according to provisions in cl 18(3). Part 3, cll 15 and 16 of LLEP deals with heritage conservation objectives and development involving heritage considerations.

12 Clause 19(2) contains development standards for the maximum FSR in various Density Areas, which is 0.7:1 in this case.

13 Clause 19(3) states that except when development is carried out in accordance with cl 23(1):

(a) The minimum landscaped area for residential development is 40% of the site area, and
(b) 25% of the landscaping area required under paragraph (a):

(i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and
(ii) is to be permeable, and
(iii) is to be appropriate for substantial deep planting.

14 Clause 33 refers to the foreshore building line.

State Environmental Planning Policy 55 - Remediation of Land

State Regional Environmental Plan 23 - Sydney and Middle Harbours

Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004

Development Control Plans:
• DCP 36 - Notifications,
• DCP 38 - Waste,
• DCP 42 - Land Contamination,
• Leichhardt DCP 2000.

15 Detailed evidence was presented by:

• Mr S Harding (CAE), consultant town planner and his reports are Exhibits 5 and 18.
• Mr R Staas (CAE), consultant heritage architect and his reports are Exhibits 6 and18.
• Mr A Hunter, landscape architect and his reports are Exhibits 15 and 16.
• Mr T Ward, landscape consultant, and his reports are Exhibits D and 16.
• Mr B Macleod, arborist and his report is Exhibit B.

16 The written objections contained in council’s bundle, Exhibit 7, together with the various neighbours oral objections have been considered.

17 In response to the identified issues, Mr Harding assessed the initial application relative to the current controls and concluded that the proposal represented an overdevelopment of the site. The reasons for this conclusion include:

i) The proposals calculated FSR of 0.75:1, which exceeds the development standard of 0.7:1 in cl 19 (2) of the LEP. In this regard he noted that no supporting SEPP 1 Objection had been lodged,
ii) The non-compliance with the DCP 2000 controls relating to built form, building envelope and siting,
ii) The necessity to remove an existing mature tree which has visual prominence from the waterway.

18 With regard to the building form, Mr Harding refers to the primary DCP building location zone (BLZ) control, which endeavours to locate new development relative to adjacent building lines. Insofar as the staggered setbacks of the neighbouring buildings allow different interpretations of the BLZ, nevertheless Mr Harding preferred some reduction in the north-eastern corner of the building (proposed sunroom/veranda area), to minimise the waterfront area encroachment and adverse impacts on the neighbouring (No. 7) property.

19 Mr Harding also expressed concern about proposals non-compliance with side boundary setbacks, which he says has minor impacts on the adjoining property. Insofar as Mr Harding is dissatisfied with the original proposal, he says that his concerns over the volume and scale of the building on the south eastern corner could be overcome by amending the plans so that the waterfront facade (eastern) is reduced and opened up to some extent, to achieve greater consistency with the adjoining dwelling at No. 11 Gallimore Road.

20 Apart from this, Mr Staas addressed the heritage issues, which raised questions about the appropriateness of demolishing the existing dwelling and subsequently the suitability of the replacement building in its context. This context particularly concerns its relationship with the adjoining, attached Federation era semi, which has been substantially modified by later additions and alterations to its north and west elevations. According to Mr Staas, these alterations, together with unsympathetic modifications to the veranda treatment of both houses means they no longer represent the original design character.

21 The heritage issues have been addressed according to the provisions of cl 16(7) of the LLEP, which states that “consent must not be granted for the development of land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.”

22 As the subject site is located in the vicinity of a local heritage item at No. 14 Clifton Street, Mr Staas says that the current proposal does not have sufficient heritage impact on this item to warrant refusal. I rely on this opinion.

23 Clause 16(8) then states that “consent must not be granted for the demolition, reconstruction, adaptation or wretched of a building, the carrying out of were, or the subdivision of land, within a conservation area unless the consent authority has made assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular at regard to:

(a) the heritage significance of any building, work, relic, tree or place, archaeological sites or potential archaeological site or aboriginal site that would be affected, and the contribution it makes to the conservation area, and
(b) the compatibility of the proposed development with a conservation area, including the size, form, scale, orientation siting, materials, landscaping and details of the proposed development .”

24 In response to this requirement, Mr Staas includes in his report an assessment based on the NSW State Heritage Assessment Criteria and finds that the proposal does not reach a threshold for:

(a) historical evolution,
(b) historical associations,
(c) aesthetic values,
(d) social value,
(e) technical/research value, except that archival recording and other the logical assessments are recommended,

25 With regard to representation, Mr Staas says that:

The building is a representative example of the attached Federation house type of which there are many in the municipality. Representative value alone in the absence of any other heritage value is insufficient to warrant Local heritage identification or to warrant retention in preference to appropriate infill development. This assessment is further affected by the substantial changes to the adjoining half of the pair. An intact pair of buildings would have more significance as a representative example capable of demonstrating principal characteristics of a class of residences.

26 Mr Staas deals with the heritage status as follows:

3.1 The subject building is not identified as a heritage item in the Leichhardt LEP and is not noted as a potential heritage item or a contributory item in that or any other statutory document. The site is sited within the Balmain conservation area that covers much of the Balmain peninsular and is located within the vicinity of three heritage items identified in the Leichhardt LEP. In this regard the Leichhardt LEP states at Part 3 Heritage Conservation, Clause15 Objectives, that the objectives of the Plan in relation to heritage conservation includes:
(c) To prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items.

3.2 Clause 16 Heritage Items, (8) Conservation areas, requires that prior to approving the demolition of a building within the conservation area, the consent authority must make an assessment of the extent to which the proposed demolition would have on the heritage significance of the place and its contribution to the conservation area.

3.3 A concise statement of significance of the Balmain Peninsular Conservation Area is not identified in the Leichhardt DCP or any other statutory document and is not available from the Council. A heritage review of the Local Government Area has recommended that smaller conservation areas be established and the following draft statement of significance is that suggested for the relevant area in East Balmain. The statement and other recommendations in the review have no statutory weight at the present time:
One of a number of conservation areas which collectively illustrate the nature of Sydney's early suburbs and Leichhardt's suburban growth particularly between 1871 and 1891 with pockets of infill up to the end of the 1930s (ie. Prior to World War II). The earliest developments here predate Leichhardt's main suburban growth with marine villas and cottages from the 1840s to modest scale housing from the 1870s through to the 1930s and industry. It is significant for its surviving development from these periods.
3.4 The character of the Balmain East Distinctive Neighbourhood is described in the Leichhardt DCP (A 10.6.2). The descriptions and specific requirements for future character do not tend to address the subject site and its current development. The areas of highest significance are said to be those containing significant remnants of the Early Victorian housing and commercial building stock.
3.5 Additionally under the provisions of Clause 16, Heritage Items, (7) Development in the vicinity of a Heritage Item, consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect of carrying out of that development will have on the heritage significance of the heritage item and its setting as well as any significant views to and from the heritage item.
3.7 In regard to the three heritage items identified as being No.14 Clifton Street, No. 2 School Street and the retaining wall, steps and fence of Gallimore Avenue, I am of the professional opinion that the demolition of the existing structure at No. 9 Gallimore Avenue would have negligible impact on the significance of any of the items and is not a valid reason to prevent consideration of the current application.

27 Insofar as he concluded that the demolition component of the proposal is allowable in this case, nevertheless his ultimate conclusion was that the initial proposal was unsatisfactory because of unacceptable detailing of the replacement dwelling, which could however, be rectified by amendment of the design. The unsatisfactory detailing particularly refers to its bulky design aspects, uncharacteristic front veranda treatment and unsatisfactory roof form.

28 In response to the unsatisfactory aspects raised by the Court-appointed experts and the residents, the applicant provided amended plans which include:

• a reduced floor area and increased corner setback of the southern side of the sunroom/veranda,
• removal of the flat roof from the south-eastern corner of the ground floor veranda,
• provision of lattice screening on the southern boundary extending to the east to retain privacy for the neighbouring property 7 Gallimore Avenue,
• reinstatement of the chimney,
• revised landscaping treatment is to be designed in accordance with discussions with council landscape officer and Waterway Authority. This landscaping to provide increased planting at the waterfront to provide greater tree canopy.

29 The Court-appointed experts subsequently conferred on these amendments and agree that they satisfactorily address the initial concerns to an extent that the proposal now merits conditional consent.

30 According to Mr Harding, the following improvements result:

• the increased corner setback overcomes concerns regarding the appearance of the dwelling from the waterway. In particular, the dwelling provides the requires symmetry of the adjoining half of the building.
• the boundary setback requirement for the south-western corner of the building changes because the upper wall is setback further from the boundary. This setback is now considered satisfactory; particularly as the roof section of the upper-level deck has been removed.
• the changes to the landscape solution for the "side corridor” outlined in the landscaping expert joint report indicates that mature trees with a commencement height of 3.5 m, will provide an appropriate level of landscaping versus built form.
• the removal of the roof form also allows for the proposed trees to have increased spread in reaching maturity. This overcomes concerns regarding the relationship of built form to landscaping, previously expressed.
  

31 Mr Staas also confirms that the changes made in relation to the street and harbour facades, setbacks and roof treatments are satisfactory to meet the requirements of SREP 23 and the DCP in regard to impact on the streetscape and appearance of this site amongst its neighbours when viewed from the harbour. His opinion is that there will be acceptable visual impacts within the context of the Conservation area and the proposed planting scheme will maintain the separated site effect that predominates in the immediate vicinity. However, he prefers the garage to have a pitched roof form, but raises no substantive objection to the conditioned flat roof garage required by council. Accordingly I accept that the flat roof is acceptable and that it allows marginally improved views.

32 One of the associated issues that arose during the hearing, concerns impact of the proposed landscaping, due to the expanded footprint which necessitates the removal of vegetation, including the mature, 11m Box Elder. However, this tree was subject to an assessment by arborist Mr Macleod, who considers it is in poor health with a SULE of less than 5 years. Consequently he recommends its removal.

33 Insofar as this tree is recognised as making an important contribution to views from the waterway, consideration was given to options for its removal considering its condition. The options took into account the desirability to maintain a vegetative corridor between the houses without causing unreasonable interference with existing view corridors or solar access amenity.

34 Landscaping experts’ Mr Ward and Mr Hunter conferred and agreed that an appropriate replacement would be an advanced Angophora costata because it is a most appropriate species to maintain the foreshore character and is technically viable within the following space limitations because:

• significant building enclosure occurs on one side only;
• generally the tree canopy will be open to the west south and east;
• overhang of canopy to 7 Gallimore Avenue would be in the range of 2-4 m;
• the species is one adapted to difficult habitats on rock and shallow soils;
• the planting branch and canopy form will adapt to the planting situation.

35 However, Mr Hunter prefers an increase setback to provide a minimum separation to the building facade of 2 m. Apart from this, these experts agree that appropriate conditions of consent can be imposed to cover the outstanding landscaping concerns.

Conclusions

36 Having considered the evidence, the submissions and undertaken a view, I am satisfied this amended proposal now merits conditional consent, based on the substantive agreements by the respective Court appointed experts and other expert evidence, that the issues have been satisfactorily addressed.

37 One of the principal issues concerns the demolition of the proposed dwelling and the suitability of its replacement. Insofar as Mr Staas acknowledges that this post Federation era semi make some contribution to the Conservation area, nevertheless this is limited in the current context, where its optimal contribution to enhancing the area is severely constrained because of the previously approved, unsympathetic alterations to the adjoining semi, at 11 Gallimore Avenue.

38 Accordingly, I accept Mr Staas’s opinion that the amended proposal will have a neutral affect on the conservation area, and in the circumstances of this case, reasonably satisfies the heritage criteria for approval. In this regard I have particularly considered Mr Staas's heritage assessment, which concludes that it is reasonable to allow the demolition of existing dwelling and be replaced by another suitable dwelling. Furthermore, I rely on his opinion that the amended proposal has satisfactory visual appearance from the harbour, as required by SREP 23.

39 In support of this conclusion, I note that the applicant's heritage architect Mr G. Brooks, also agrees that in these circumstantes the demolition and replacement is warranted. This is also consistent with the opinion of councils heritage assessment officer, Mr Lay, who stated:

Number 11 has been substantially modernised retaining its original overall form, but otherwise totally new. It retains its landscape setting has seen from the water. Number 9 is much more intact, but it to has been modified to be the lower-level to open it up to the view, and add a deck, etc. It is in sound but neglected condition. The value of the pair lies as a pair, restoring No.9 is a dubious proposition, particularly given the size of the lot the landowner can readily seek major enlargement that will further compromise it. Nevertheless demolition should be justified by heritage assessment, and complete documentation by measured drawings and by photography is essential before demolition.

40 Even though Mr Walsh has made alternative submissions, which support the neighbours preference that the existing dwelling be retained and restored, I consider the balance of evidence confirms that there are no exceptional circumstances, which would warrant the refusal of this application, so that it could possibly be restored, as suggested. This would require the rejection of the Court appointed heritage expert, Mr Staas’s opinion, which I do not consider reasonable in this case, because the heritage objectives in the respective controls are achieved in my assessment of the evidence.

41 I am also satisfied that the merits of the amended building design have been carefully considered, so as to achieve reasonable compatibility with its neighbours and also to provide satisfactory visual aesthetic impacts. I also consider the other amenity impacts of potential privacy loss and view loss are minimal as stated by Mr Harding, whose opinion I rely on.

42 With regard to the landscaping issue, I consider it reasonable to take into account the condition of the existing Box Elder, which is in decline and has a limited life according to its SULE of less than 5 years. In these circumstances, I consider its replacement appropriate as part of any development and accept the agreement of the landscape consultants opinions that the Angophora costata is a suitable replacement. Whilst its screening and landscape effect may be reduced compared to the Box Elder, nevertheless I think it appropriate to take into account that three of these Angophora costata are proposed to be planted in the side corridor, so that the cumulative effect will achieve the vegetative corridor required, without necessarily requiring increased building setback. Therefore I am satisfied that the landscaping concerns can be covered by appropriate conditions consent.

43 I have carefully considered the various submissions and objections made by the neighbours, noting the general preference that significant weight be given to the retention and restoration of the subject dwelling, to maintain conservation character of this part of Balmain East. But the subject property is not heritage listed and does not impact on other nearby heritage items, according to Mr Staas. As I stated before, I rely on the opinions of Mr Staas, who is an experienced heritage architect, that the demolition of the existing dwelling and its replacement demonstrates satisfactory compliance with the prevailing heritage controls, to allow development consent to be granted.

44 I also rely on Mr Harding evidence that any amenity impacts on neighbouring properties are not sufficient to warrant rejection of the amended proposal.

45 In summary then, it is apparent from the view that this part of Balmain East contains a variety of building types and styles. However, I am satisfied to rely on the opinions of the Court-appointed planning and heritage experts, that the ultimate effect of allowing this proposal is that the general objectives in the LEP, to encourage the design of buildings and spaces which are compatible with the character, form and scale of this particular area are reasonably satisfied to merit consent in this case.

46 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted to DA 03/0738 for the demolition of an existing dwelling/garage and construction of a new dwelling and garage at 9 Gallimore Avenue, Balmain, subject to the conditions in Annexure “A”.

3. The exhibits may be returned except for Exhibits 1, 2, 3, 14, 16, 18, 19, N and Q.

_______________________
R Hussey
Commissioner of the Court
Rjs/ljr