Fiene v Leichhardt Municipal Council

[2010] NSWLEC 1226

Land and Environment Court

of New South Wales

CITATION:

Fiene v Leichhardt Municipal Council [2010] NSWLEC 1226

PARTIES:

APPLICANT
Gary and Desiree Fiene

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10355 of 2010

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT CONSENT :- s96 application to delete condition.
Impact of changes on heritage significance of the conservation area.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000

DATES OF HEARING:

27/07/2010

EX TEMPORE JUDGMENT DATE:

27 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Seton, solicitor
Marsdens Law Group

RESPONDENT
Ms J Walsh, solicitor
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

27 July 2010

10355 of 2010 Fiene v Leichhardt Council

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


JUDGMENT

1 This is an appeal against the refusal by Leichhardt Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent (D/2007/324) for alterations and additions at 2 Cove Street, Birchgrove.

2 The development consent includes Condition 2(a), which requires the deletion of a proposed dormer window fronting Cove Street. The s 96 application is seeking to:

(a) delete Condition 2(a) and retain the front dormer window to the storage attic;

(b) increase the height of the rear first floor addition by up to 480mm.

3 The dormer, for which approval is sought, is smaller and of a different design to the front dormer proposed in the original development application. The height of the rear first floor addition was proposed in the original application but was reduced during the assessment due to concerns raised by council about its height and bulk.

4 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions.

5 The hearing was conducted on site and commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached and the parties agreed to me disposing of the proceedings.

6 There were no resident objectors to the proposal. The Court heard heritage evidence from Mr B McDonald, for the council, and Mr P Romey, for the applicant. Mr G Turrisi provided planning evidence for the applicant.

7 The key dispute between the parties is whether the proposed changes will adversely affect the heritage significance of the conservation area.

Dormer window

8 Mr McDonald and Mr Romey held similar opinions on the significance of the conservation area. Mr Romey stated that:

There is disparate/diverse architectural character throughout the conservation area, particularly in the Birchgrove/Elkington Park Distinctive Neighbourhood in the vicinity of Cove Street (eg Cove Street, Ferdinand Street, Louisa Road and Reuss Street). The architectural styles include Federation bungalows, Californian bungalows, timber and fibro cottages, Victorian terrace houses, Colonial cottages and modern brick and rendered buildings. There are also examples of Italianate, Georgian and Regency styles in the area.

9 Mr McDonald said that the area had evolved over many years and that the styles reflected the layers of development that tell the history of the area.

10 The experts agreed that the existing house made a contribution to the conservation area although they disagreed on the extent of that contribution.

11 Mr McDonald considered that the cottage, and its adjoining pair (4 Cove Street) were examples of Federation cottages that, together with the houses from other periods, contribute to the variety and diversity of the area. Mr McDonald recognised that the cottages had been altered and that they were no longer identical in appearance but considered that they still read as a pair, particularly due to their hipped roof form with its projecting gable.

12 Mr Romey stated that:

A broader assessment of 2 Cove Street is that it is a modest example of a (albeit attached) Federation cottage displaying some characteristics of the period such as a slate hip roof, multi-pane window sashes and window awning. It could be attributed with some measure of rarity as half of an attached pair of Federation style residences, although this aspect of significance has been compromised by the scope and disparity of alterations that have occurred to both cottages over time.

13 Both experts agreed that that the cottages would not warrant listing as an individual heritage item. The experts also agreed that the proposed dormer window was traditional in its form, proportions and materials, however, they disagreed as to whether it was an appropriate addition to the cottage.

14 Mr McDonald described the cottage as a small single story Federation cottage with a hipped roof and projecting gable. In his opinion, dormers are uncommon in Federation buildings and would be uncharacteristic of the style due to the small roof plane of the cottage. Mr McDonald stated that dormers on Federation buildings only occurred on larger buildings and the dormer would never have been an original feature of the cottage.

15 Mr McDonald stated that the other houses in the street with dormer additions are Victorian style with larger roof planes and that dormers are more characteristic of that period. He noted that these dormers had been approved prior to the inclusion of the area as a conservation area.

16 Mr Romey acknowledged that Federation style buildings did not generally have dormers but considered that this was not important due to the level of significance of the cottage. It is not listed as a heritage item and it is a modest example of a Federation cottage and can therefore tolerate a greater degree of change as long as its overall form, materials and proportion of openings are retained. In his opinion, the dormer is a small addition that will not dominate or overwhelm the roof form. He noted that there are many examples of front facing dormers in the street and in the vicinity.

17 Mr McDonald considered that as the proposal was an inappropriate addition to the house it would have an adverse impact on the conservation area. Mr Romey considered that the proposal would not adversely impact on either the significance of the house or the conservation area. He noted that the conservation area is large and that a change to one building would not impact on the significance of the area as a whole.

18 Mr Turrisi held a similar opinion to Mr Romey and stated that the proposed dormer provides greater amenity to the attic storage space by increasing the head height for a greater area.

Height of the rear addition

19 Mr McDonald considered the additional height proposed to the rear addition would accentuate what he thought was an uncharacteristic element in the conservation area. Mr Romey stated that the rear addition is a very visible contemporary form to a secondary street frontage. In his opinion, the increased height would not reduce its compatibility with the conservation area.

20 Mr Turrisi stated that the proposed height of the rear addition maintained a transition between the existing cottage and the adjoining house in Birchgrove Road. There would be no perceivable additional bulk resulting from the increased height or amenity impacts. The proposal would improve the internal amenity of the bedroom by increasing the ceiling height.

Findings

21 Clause 7.3 of Leichhardt Local Environmental Plan 2000 (LEP2000) requires that consent must not be granted for development unless the consent authority is satisfied that the proposal is consistent with the relevant objectives. The relevant objectives for heritage conservation in cl15 include:

(a) to protect, conserve and enhance the cultural heritage including buildings and townscapes;
(c) to prevent undesirable incremental change which reduces the heritage significance of places, conservation areas and heritage items;
(d) to allow compatible adaptation.

22 Clause 16(8) of LEP2000 provides:

Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of 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:
(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
(b) the compatibility of the proposed development with the conservation area including the size, form, scale or siting materials, landscaping and details of the proposed development.

23 The parties disagreed on whether the controls are met, principally whether the proposed front dormer will have an adverse impact on the significance of the house and the conservation area.

24 I accept Mr Romey’s position that the fundamental question of whether the addition of the dormer is appropriate should be considered in the context of the heritage significance of the cottage. The cottage is not listed as an item and is a modest example of an attached Federation cottage, therefore, a greater degree of tolerance to change can occur. However, in accepting this position it is also important to consider the necessity for the change and to balance this against the impact on significance.

25 Ms Walsh’s submission, for the council, outlined the relevant parts of Leichhardt Development Control Plan 2000 (DCP 2000). These clearly state a preference to minimise change to original fabric and, where change is to occur, it should compliment the architectural style of the building.

26 Both heritage experts agree that dormer windows were not characteristic of Federation style building and as such the proposal does not meet the requirements of DCP 2000 to ensure that “changes to a building fabric are to be complementary to the architectural period and style of the building”.

27 The proposed dormer is proposed to only one of two attached Federation cottages. While these buildings have undergone significant change, I accept Mr McDonald’s evidence that they still read as a pair and that change to one of the buildings would be inappropriate given that it is not also proposed to the other.

28 Development consent has approved a dormer to the rear of the attic and a significant addition to the rear. These changes have enabled a reasonable level of accommodation to be provided on site to meet contemporary standards of residential living. The attic is approved as a storage area, it already has a Velux window to the side and an approved dormer to the rear. These will provide more than adequate light and ventilation. The additional headroom to be provided by the proposed dormer to the street would be an area of about 900mm wide by 1.4m long. As such the amenity benefits that the proposed dormer may provide do not outweigh the impacts of providing a dormer on the front façade, or justify the need for the change.

29 The other dormers in the street were approved prior to the inclusion of the area as a conservation area and are on buildings of different periods. I accept Mr McDonald’s evidence that the proposed dormer is uncharacteristic and that the incremental change to a contributory building in the conservation area impacts on the significance of the conservation area.

30 The rear addition is a contemporary element and I accept Mr Romey’s opinion that the increase in height will not make a significant difference to the height and bulk of what is already approved such that it would reduce its compatibility with the conservation area.

The orders of the Court are therefore

1. The appeal is upheld in part and dismissed in part.

2. The development consent (D/2007/374) for alterations and additions at 2 Cove Street, Birchgrove, is modified under s 96 of the Environmental Planning and Assessment Act 1979 by the deletion of the plans in Condition 1 and the replacement with: Plan reference 02K and 03K drawn by Melocco & Moore dated 24/11/09

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

___________________

Annelise Tuor
Commissioner of the Court
DJ