Dorner v City of Sydney Council

[2008] NSWLEC 1258

Land and Environment Court

of New South Wales

CITATION:

Dorner v City of Sydney Council [2008] NSWLEC 1258

PARTIES:

APPLICANT
Daryll Dorner

RESPONDENT
City of Sydney Council

FILE NUMBER(S):

11094 of 2007

CORAM:

Murrell C

KEY ISSUES:

Appeal - Section 96 Application :- impact on heritage item, impact on adjoining properties.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

06/02/2008, 05/03/2008, 29/04/2008 and 05/06/2008

EX TEMPORE JUDGMENT DATE:

5 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr S. Kondillios, solicitor
Instructed by Mr T. Neal
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

5 June 2008

11094 of 2007 Daryll Dorner v City of Sydney Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 This is an extempore judgment for an appeal under s. 96(6) of the Environmental Planning and Assessment Act, 1979 against the City of Sydney Council’s refusal of a development application for the property known as 183 Albion Street, Surry Hills.

Background

2 The building on the subject site is a heritage item and it has been altered with additions. There has been an upper floor added at the rear and there have been other substantial alterations and additions approved by the council, however, they are not the subject of the proceedings before me today. There have been numerous other s. 96 applications A to D and they are not the subject of my determination either.

3 The application before the Court. When the Court first met on site on 5 March 2007 the s 96 plan showed a planter box in the position of the deck that had been unauthorised at the rear of the first level of the dwelling house. As such this was shown as a large planter with a balustrade on the southern edge.

4 The Court at that time gave preliminary findings to the effect that the planter box as shown which was the full width of the previous deck with a balustrade . I considered this to be excessive and added to the bulk of the heritage item.

5 The applicant responded by providing an amended plan and the amended plan before the Court today shows the planter box significantly reduced in width such that it is some 600 mm with planting adjacent to the rear of the face of the glass wall of the dwelling at the first floor level. There is also a skillion roof from near the top of the planter box to what is the parapet from the ground floor level at the rear.

6 The Council contends that the presentation of the bulkhead, that is its rear presentation, is still unacceptable and the development application, or the s.96 application, should not be approved.

7 During the course of this morning’s proceedings the applicant has made inquiries as to whether in fact the concealed box gutter shown in the plan could be relocated to the rear face of the wall and this has the effect of a more traditional skillion roof and external gutter together with the effect of reducing the height of the parapet to the rear.

8 I am satisfied that the amendment to this effect would not cause an unreasonable impact in terms of the presentation or the size of the bulkhead at the rear of the subject dwelling.

9 The Council’s evidence to the Court and in Ms Elek’s statement of evidence it can be seen from page 5 of the photographs that the proposed gutter, that will now be external and at the edge of the skillion roof will be approximately at the height of the two vents for the air conditioner. I am satisfied the proposal to be further amended will provide relief to the presentation that we see today and will be more in sympathy with the dwelling house itself.

10 By way of background. The approval for the upper floor level that has been described as a pop-up extension at the rear is most prominent and clearly one’s eye is taken to the rectilinear form of the addition at the first floor level. This is not a matter for the Court, and was approved by the council. I do not consider that the application before me will impact on the heritage significance of the dwelling and in fact will provide for a more sympathetic rear presentation.

11 The applicant during these proceedings has also offered and has shown in the plan that there would be a canopy tree provided in what council approved as a totally paved front area to this heritage dwelling. This dwelling is one of eight in a row that have particular significance as an attractive row in the area in the context of its heritage significance and in the context of the heritage conservation area.

12 It is important that in assessing development applications for alterations and additions, in particular in heritage conservation areas and in particular where there is also an item of heritage, that the conservation of the area and the contribution that the item has to the conservation area is also considered. I am of the opinion that the provision of a canopy tree is rather minimalist but nonetheless it will improve and provide for a more appropriate setting for this terrace within the row, many of which have traditional front gardens.

13 It seems that it is unfortunate that the whole of the front area was paved and it is also unfortunate there is not a further contribution by the applicant by way of a garden bed at the front that we see in many of the adjoining terraces. The setting of terraces includes its curtilages with the appropriate landscaping, is also an important element in terms of heritage conservation areas and items. Nonetheless the applicant has offered to provide a canopy tree in the front which will enhance its presentation in the heritage conservation area.

14 With respect to the rear addition the plans that are currently before the Court have evolved significantly and are a radical improvement and an amendment to the plan the Court originally had to consider in these proceedings.

15 At the end of the day the Council still raises the concern about the presentation of the bulkhead to the rear. I am conscious of their concerns, however I am also satisfied with the amendment now proposed by the applicant today with the gutter external to the rear wall the presentation is satisfactory.

16 The Court is also most conscious not to condone development by creep. It would appear that the application that was originally submitted to the Court was to overcome the unauthorised deck but it was not an application that the Court would have approved because of its unnecessary size as a plant and resulted in excessive bulk it also at some future date allowed for a reinstatement of the large deck. I am not saying that is what the intentions of the applicant were but nonetheless it still represented development by creep and was not appropriate.

17 I am satisfied that the application before the Court today in exhibit C provide for the applicant’s desire to provide a vegetated green setting to the rear glass room, which is currently used as a dining area, to provide for internal amenity. I am also satisfied that when viewed from other properties there are some properties at the rear although not directly opposite with a line of sight but nonetheless these properties while at an angle would be able to view the rear portion of the subject premises to a limited extent and the reduced planter box with vegetation will also be a a satisfactory resolution while being of less bulk.

18 Therefore, on the basis of my assessment and on the receipt of the amended plan to be filed with the Court by 4 pm on Tuesday 10 June 2008, I will issue orders in chambers that will be to the effect that:

1. The appeal in respect of the property known as 183 Albion Street, Surry Hills, will be upheld;
2. The s 96 application submitted to the City of Sydney Council as shown in the amended plans Exhibit E will be approved subject to the conditions contained in Annexure ‘A’;
3. The exhibits are returned to the parties with the exception of Exhibits C, D and E and Exhibits 4 and 5.
4. The respondent has undertaken to provide the conditions to the applicants and to the Court by 6 June and the applicant then has the opportunity to respond to same when the plans are filed and served on 10 June 2008.
5. The Court notes the applicant’s undertaking to pay the respondent’s costs for amended plans.

___________________

J. S. Murrell
Commissioner of the Court
kb/ljr