Essicorp v Leichhardt Council

[2005] NSWLEC 485

Land and Environment Court

of New South Wales

CITATION:

Essicorp v Leichhardt Council [2005] NSWLEC 485

PARTIES:

Applicant:
Essicorp Pty Ltd & Richard Mark Jones

Respondent:
Leichhardt Council

FILE NUMBER(S):

10144 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Development Control Plan - Development Standards :-

DATES OF HEARING:

09/06/2005 and 27/06/2005

 
DATE OF JUDGMENT: 

09/06/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr P Clay, barrister instructed by Mr P Moloney of Moloney Lawyers

Respondent:
Mr G Green, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Roseth SC

6 September 2005

10144 of 2005 Essicorp Pty Ltd and Richard Mark Jones v Leichhardt Council

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. Senior Commissioner : This is an appeal against the deemed refusal by Leichhardt Council (the council) of a development application relating to lot 48 DP 66910, known as 48 Evans Street, Rozelle. The application is to demolish the existing building, erect two semi-detached dwellings, construct two swimming pools, and subdivide the property under Strata title into two lots.

2 The site is on the eastern side of Evans Street, a short distance north of the intersection with Goodsir Street. It is within the Balmain Conservation Area. It has an area of 342 sq m . There is a fall from the southwest to the northeast corner. To the north is No 46 Evans Street, a single storey commercial building, with a high brick structure without openings on the boundary and adjacent to the rear garden of the subject property. To the south is an industrial building with a gable ended pitched roof located on the common boundary. There are several windows on the wall facing the site. Further to the south and to the east are cottages with frontages to Goodsir Street. The ground levels of these are generally below the level of the site.

3 Opposite the site is a mix of one-and two-storey buildings, including some that appear to have been built originally for commercial use.

The proposal

4 The applicant proposes to

• demolish the existing building;
• construct two two-storey terrace type dwellings with a laundry basement under;
• construct two swimming pools in the rear yard; and
• subdivide the two dwellings under Strata title.

5 The applicant lodged the development application in October 2004. Following notification, the council received three submissions, all of them from properties in Goodsir Street. On 19 April 2005 the council considered a report by its assessment officer that recommended refusal. The council accepted the recommendation and refused the application on 5 May 2005. The applicant lodged the appeal in February 2005 against deemed refusal.

Relevant planning controls

6 Local Environmental Plan 2000 (LEP 2000) zones the site “Residential”, a zone in which the proposed development is permissible with consent. The LEP establishes a maximum Floor Space Ratio (FSR) of 0.7:1 for the site and requires 40% of the site to be landscaped. The minimum allotment size is defined as 200m ² . (Because the site is to be subdivided under Strata title into lots smaller than 200m ² , it was common ground that the minimum allotment size requirement was not breached.) Development Control Plan 2000 (DCP 2000) establishes, among other things, a 6m building envelope. The DCP also establishes side setbacks and allows variations subject to certain criteria. State Environmental Planning Policy 1 (SEPP 1), under which the applicant lodged an Objection to the maximum permissible FSR in LEP 2000.

The issues

7 The council submitted a Statement of Issues containing the following eight issues:

• FSR is 0.85:1, while the maximum permissible is 0.7:1.
• The building envelope does not comply with B1.2 of the DCP.
• The excavation is excessive.
• Visual and acoustic privacy is not acceptable.
• Built form, elevations and materials are inappropriate.
• Demolition should not take place without an acceptable replacement.
• Building Code of Australia and BASIX are not complied with.
• Issues raised by residents, ie balconies are too large, trees on boundary should be preserved, noise from swimming pools, FSR is excessive, height is excessive, proposal is out of character with the street, and proposal will add to parking demand.

8 At the commencement of the hearing, the council’s planning expert, Ms D Laidlaw, identified the main issues somewhat differently from the above. In her opinion, the problem was that the building was too high at the rear. The increased FSR and the zero setback would be acceptable if the building were lowered at the rear. She suggested a lowering by 700-800mm, to be achieved by splitting the ground floor level. In addition she would eliminate the two swimming pools and decrease the width of the first floor timber deck. If these amendments were made, she would find the proposal acceptable.

The objectors’ concerns

9 When the proposal was notified, it attracted three objections, from Nos 4, 6 and 8 Goodsir Street. At the site view the Court inspected also No 2 Goodsir Street, which is the only Goodsir Street property that actually has a common boundary with the subject site. Nos 4, 6 and 8 Goodsir Street do not have a common boundary and their depth does not extend far enough to provide a direct view of the subject site. In my opinion the relationship between these properties and the subject site is so indirect that the dwelling (as against the swimming pool) element of the proposal would have a minimal impact on them. The swimming pools, however, are located close to these properties and may well become a source of disturbance.

10 While the rear yard of No 2 Goodsir Street has a common boundary with the subject site, the distance between the proposed dwellings and the boundary is in excess of 12m. The swimming pools are closer and have an even greater potential to disturb.

11 The owners of the two adjoining properties facing Evans Street did not object to the proposal. The property to the south, No 50-58 Evans Street, is a vacant commercial building. In Ms Laidlaw’s opinion, the building envelope is likely to be retained even if it is redeveloped for residential use, since the envelope is greater than would now be permissible. As a result The owners of the two adjoining properties facing Evans Street did not object to the proposal. The property to the south, No 50-58 Evans Street, is a vacant commercial building. In Ms Laidlaw’s opinion, the building envelope is likely to be retained even if it is redeveloped for residential use, since the envelope is greater than would now be permissible. As a result, the proposal would have minimal impact to the south. The property to the north, No 46 Evans Street, is also a vacant commercial building that includes elements that are larger than would now be permissible. Its likely future is less easy to guess, as it may be redeveloped within the existing building envelope or by demolition and new development. Given, however, that the proposal has a wall without openings on the common boundary and there is no shadow impact, the proposal would have only minimal effect on the development potential of No 46.

The FSR

12 The proposal’s FSR is 0.88:1, which is in excess of the maximum FSR of 0.7:1. The applicant submitted an Objection under SEPP 1. The applicant’s planning expert, Mr R Chambers, supplemented the Objection through his oral evidence. As stated above, Ms Laidlaw did not oppose the additional FSR as long as the applicant reduced the impact of the building towards the rear.

13 In my opinion, the variation to the FSR in this case is justified. LEP 2000’s objective in relation to housing is:

(a) to provide development standards to ensure that the density and landscaped areas of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings…

14 DCP 2000 describes the future desired character of Evans Street as:

Preserve the commercial architecture of this street, with nil setbacks, parapet roof forms and posted balconies where appropriate.

15 The proposal is consistent with the objective of development standards for housing, which include the FSR standard. The justification would not apply to other sites in Evans Street or in the locality because this site is located between two bulky commercial buildings, one of which is likely to remain in its present bulk and the other may remain in its present bulk. A large proportion of the excess floor space is taken up by the laundry, which is partly sunk underground. The appearance to Evans Street is not affected by the additional floor space and is consistent with the DCP’s description of desired future character.

Setbacks to side boundaries

16 Ms Laidlaw raised no objection to the nil side setbacks of the proposal. It is clearly consistent with the future desired character and with the buildings on either side.

Lowering the floor level

17 Ms Laidlaw suggested that the rear part of the proposed building be lowered by 700-800mm by splitting the floors. Mr Chambers said that the floor level was determined by the invert level of the street drain to which the water tank discharges, assuming that the pipe between the tank and the gutter runs under the ground floor slab.

18 I do not think that the impact of the proposed building justifies requiring a drastic amendment such as splitting the floor levels. However, I note that the floor level is 200-300mm above the level of Evans Street and therefore significantly above the level of the rear garden. The applicant said that it was willing to lower the ground floor level (and thereby the whole building) by 300mm. This would require a different solution to draining the water tank, ie the pipe could not be located under the floor.

19 In my opinion, lowering the building by 300mm would go some way towards meeting Ms Laidlaw’s suggestion without requiring a complete re-design of the building. It would bring the rear of the house closer to the garden and reduce the number of steps between. It would be an acceptable compromise.

Width of first floor balconies

20 Ms Laidlaw as well as the objectors suggested that the width of the first floor balconies be reduced from 2.7m to about 1m. The reason is that the balconies would then not provide the same opportunity for social gatherings with the potential to disturb the neighbours. Reducing the balconies does not have any benefit in reducing the bulk, since the side-walls extend beyond them.

21 I do not think that the suggestion is sound. The balconies adjoin two bedrooms, not a living area. While there is no prohibition on entertaining from one’s bedroom, most people tend not to invite their guests into them. Given that the balconies are more than 12m from the common boundary with the nearest neighbour (No 2 Goodsir Street), in my opinion they may remain 2.7m wide. I do not think that the suggestion is sound. The balconies adjoin two bedrooms, not a living area. While there is no prohibition on entertaining from one’s bedroom, most people tend not to invite their guests into them. Given that the balconies are more than 12m from the common boundary with the nearest neighbour (No 2 Goodsir Street), in my opinion they may remain 2.7m wide.

Swimming pools

22 Ms Laidlaw suggested that the swimming pools be deleted. All the objectors were concerned about the swimming pools as a potential noise source. The swimming pools would be less than 2m from the common boundary with No 2 Goodsir Street. In my opinion, they are inappropriate on the tiny sites on which this development is proposed, in a location so close to another property and within the general character and environment of the locality. The impact of the swimming pools on the Goodsir Street properties is unacceptable.

Dispute about conditions

23 The council submitted two sets of conditions, one of which it preferred to the other. The conditions included deferred commencement conditions relating to matters, some of which this judgment has determined. One condition requires the deletion of four pump-out pits and the creation of drainage easements through adjoining lots. It is likely that, with the deletion of the swimming pools and the consequential increase in soft landscaping, the pits will become unnecessary, so the dispute about whether they should be disposed of by pumps or through gravity would not arise.

Amended drawings on 30 August 2005

24 The above findings were read into the record on 27 June 2005. On 30 August 2005 the applicant filed amended drawings that responded to the findings, ie they lowered the floor level by 300mm and deleted the swimming pools. The applicant also filed amended stormwater drainage plans to which the council raised no objections. The parties agreed to my making orders in chambers. I have substituted the amended drawings for the original drawings in Exhibit A. In view of the above, the appeal is upheld.

1. The appeal is upheld.

2. Development application to demolish the existing building, to erect two semi-detached dwellings and two subdivide the property under Strata title into two lots on lot 48 DP 66910, known as 48 Evans Street, Rozelle is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned, except Exhibits 4, 5, 6 and A.

___________________

Dr John Roseth
Senior Commissioner