Earl v Marrickville Council

[2005] NSWLEC 753

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Earl v Marrickville Council [2005]  NSWLEC 753

PARTIES:
APPLICANT
Kenneth Earl

RESPONDENT
Marrickville Council

CASE NUMBER:      10597 of       2005

CATCH WORDS:     Development Consent

LEGISLATION CITED:

CORAM:        Hussey C

DATES OF HEARING:        22/12/2005

EX TEMPORE DATE:          22/12/2005

LEGAL REPRESENTATIVES

APPLICANT
Ms M-Lynne Taylor, solicitor
SOLICITORS
Norman Waterhouse

RESPONDENT
Mr G Christmas, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

22 December 2005

10597 of 2005     Kenneth Earl v Marrickville Council

JUDGMENT

This decision was given extemporaneously.
It has been revised and edited prior to publication.

1. The appeal was lodged against council’s refusal of a development application for alterations and extensions to a dwelling at 363 Enmore Road, Marrickville. The proposal sought consent to demolish part of the rear of the property and carry out first floor alterations, including an upper level master bedroom and associated works.

2. The parties have agreed to the appointment of Mr Rodney Jensen, an experienced Architect/Planner as the Court appointed expert in this matter and he has prepared a detailed report, which is Exhibit 3.  That deals with the following issues that have been raised.

3. The 3 principal issues relate to:

   the inclusion of the Juliet balcony at the upper level and back of the property,

   the retention or deletion of an existing chimney towards the rear of the property,

   the impacts of overshadowing and loss of sunlight to the adjoining property. 

4. I have considered the details that have been submitted, together with the concerns of the neighbour and undertaken a view of that property.  The full details of the proposal are contained in the Statement of Basic Facts on which I rely.  It contains the relevant planning framework in which the decision has to be made.

5. Dealing with the merit issues, firstly the Juliet balcony. I have had the opportunity of going to where this balcony is proposed at the first level and assessing the overlooking opportunities from it. From this, I am satisfied that the overlooking opportunities are minimal due to the screening and landscaping on the adjoining property.  Therefore I consider it is reasonable that the Juliet balcony be retained and accordingly the relevant conditions should be adjusted. 

6. With respect to the chimney, I have heard the competing arguments on it I note that this follows the usual course where heritage experts express different opinions. But I understand this is an element of the State heritage listing for this row of houses. From the view, it is apparent that this row of adjoining cottages displays various chimney styles. 

7. Accordingly Mr Jensen, says that original chimneys are unquestionably important features the of heritage items such as the subject residence and their retention is important for the external character of both the item and group.  This opinion is consistent with council's heritage adviser, who stated that the rear chimney should be retained.

8. As the retention of the chimney was indicated on the original plans and Mr Jensen sees no necessity for its removal, I rely on Mr Jensen’s opinion that it should be kept, in order to reasonably satisfy the provisions of the DCP, Controls C4 Part 2 Section 2D.  It seems to me that it is an external feature that is worthy of retention to maintain the heritage integrity of the row of houses and I do not think there is undue imposition in being able to stabilise and retain it.  Insofar as the external chimney should be retained, the reference to the internal chimney may be deleted because that has been previously demolished.

9. The remaining principal contested issue relates to the overshadowing of the neighbouring property.  However, this impact has been subject to detailed assessment, whereby Mr Jensen is satisfied after reference to shadow diagrams, that the impacts are acceptable.

10. Mr Jensen has considered the layout of the adjoining house, and assessed solar impacts over the time period 0900 – 1500 at the winter solstice and finds that the most significant changes occur around 1000 – 1100 to window W3, along the side wall. Whilst there is also some change to solar access to the upper level roof light in the area WR, Mr Jensen says that the application of the planning principles for sunlight and the numerical standards in AMCORD, result in a satisfactory outcome, which is not sufficient to refuse consent to the proposal.

11. In my assessment, the development controls focus on any impacts to the principal living areas and the outdoor areas. But that is not in question in this case, because the principal living area is the sun room at the back with the highlight windows, I am satisfied that the two storey proposal will not unduly interfere with sunlight over the critical period.  Notwithstanding this, I note that the kitchen window is also affected.  However by reference to shadow diagrams, Mr Jensen’s opinion is that there is a marginal change to this window.

12. I clarified at the start of these proceedings whether the shadow diagrams were accurate so as to be relied on.  Mr Jensen has wide experience and he says that they are reliable and he can make an assessment from them and I consequently accept his opinion that there is a marginal change.  However, I also acknowledge that there may be some reduction in that marginal change in terms of light spill or light reflection in terms of the colour of the proposed wall along the boundary and I consider that can be addressed by the colour of wall.  I therefore understand that the neighbour might want a little time to consider this and may be done by way of an optional condition. So at the end of the day, I rely on Mr Jensen’s report and his conclusions that the aforementioned alterations should be allowed because I do not consider there has been any substantive challenge to show that his conclusions are not well founded. 

13. Therefore the Court Orders are:

    1.The appeal is allowed.

    2.Development consent is granted to DA 200400446 for alterations and additions to the residence at 363 Enmore Road, Marrickville, in accordance with the conditions in Annexure A.

    3.The exhibits may be returned except for Exhibits 3, 4, A and B.

    ___________________

    R Hussey
    Commissioner of the Court

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