Grant Crowle and Megan Crowle v Leichhardt Council

[2006] NSWLEC 255

Land and Environment Court

of New South Wales

CITATION:	Grant Crowle and Megan Crowle v Leichhardt Council [2006] NSWLEC 255
PARTIES:	APPLICANT: Grant Crowle and Megan Crowle RESPONDENT: Leichhardt Council
FILE NUMBER(S):	10011 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Streetscape impact of the proposal in the heritage conservation area.
LEGISLATION CITED:	Leichhardt Local Environmental Plan 2000, (LLEP) Leichhardt Development Control Plan, (LDCP) Sydney and Middle Harbours Regional Environmental Plan, (SHREP) and the Sydney and Middle Harbours & Parramatta River Development Control Plan, (SHDCP) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	09/05/2006
DATE OF JUDGMENT:	05/15/2006
EX TEMPORE JUDGMENT DATE:	05/06/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr J E Hannaford, solicitor SOLICITORS: Hannaford Lawyers RESPONDENT: Ms J Reid, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

9 May 2006

10011 of 2005 - Grant Crowle and Megan Crowle v Leichhardt Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Leichhardt Council, (the council) to refuse a development application to alter and add to a dwelling, involving a new first floor addition, and a new detached garage, at Lot 7, DP 778803, being No 64 Campbell Street, Balmain.

2 I visited the land in company with the parties at the on-site hearing and the next-door neighbours gave evidence.

3 I have concluded that the application should fail as a result of its adverse streetscape impact in the heritage conservation area.

The land

4 The land is situated on the northwestern side of Campbell Street, with Campbell Lane to the rear at the end of the Balmain Peninsula, close to Mort Bay. For convenience, I have taken Campbell Street as being close to a north/south orientation and thus the land may be described as being on the western side of Campbell Street.

5 Campbell Lane is about 3m wide and has an unmade and uneven surface, with rock exposed in several places, and sandstone kerbing along its length. The council has no proposal to upgrade the lane, however it has a heritage listing.

6 The land is rectangular in plan and has an area of 317.2m2 and a frontage of 9.69m to Campbell Street and 9.12m to the lane. Erected on the land is a single-storey timber cottage with a corrugated iron hipped roof with a recently completed contemporary-style extension at the rear. There is no significant vegetation on the land; however, there is a Bush Cherry towards the rear.

7 The land falls down from east to west and also from south to north, and a maximum change of level of some 2.3m from the southern-most corner on Campbell Street, to the northern-most corner, adjacent to the lane. There is a concrete block retaining wall crossing the land about 6m from the western boundary with the lane.

8 On the southern side of the land at No 62 Campbell Street, Balmain, is a substantial two-storey dwelling house, with an attic. On the northern side at No 66 Campbell Street, Balmain, is a two-storey dwelling with an attic?

9 To the rear, across Campbell Lane, at No 19 Trouton Street – ‘The Old Place’, is a two-storey sandstone house of local heritage significance.

10 Nearby, is a mix of attached and freestanding residential buildings from the 19th and 20th centuries that vary in size and scale, including single-storey and two-storey terraces, cottages and dwellings.

Relevant planning controls

Leichhardt Local Environmental Plan 2000, (LLEP)

11 Under the provisions of the LLEP the land is zoned Residential and the proposal is permissible with consent.

12 Under cl 19(2) of the LLEP, the floor space ratio, (FSR) is 0.7: 1 and under cl 19(3)(a), 40% of each site must be landscaped area and under cl 19(3)(b) 25% of that landscaped area must be soft landscaping.

13 The aims, objectives and heads of consideration of the LLEP are relevant to the land. The general objectives under cl 13(2) of the LLEP regarding the built and natural environment and amenity are of direct relevance. Clause 15 of the LLEP sets out objectives for heritage conservation. Clause 17 sets out objectives for housing.

14 The land is within the Balmain Conservation Area and under cl 16(7) of the LLEP provisions for development in the vicinity of a heritage item is included. The site is located in the vicinity of the following heritage items:

· Nos 68-70 Campbell Street - Formerly Kinsale group of houses -Local Significance;

· No 72 Campbell Street - House - Local Significance;

· Nos 1-7 Trouton Street - Four terrace-houses - Local Significance;

· No 19 Trouton Street - The Old Place (two storey sandstone house) - Local Significance; and

· Nos 1-15 Wells Street - Yeend's Terrace - Regional Significance.

15 Clause 16(8) of the LLEP sets out a requirement for assessment of the impact of new works, development or subdivision on the heritage significance of a conservation area.

Leichhardt Development Control Plan, (LDCP)

16 The land is within the Mort Bay Distinctive Neighbourhood and the Campbell Street Hill Precinct under LDCP.

17 Under the LDCP specific requirements for residential development include:

· A building envelope control. Under the provisions of the LDCP a 3.6m building envelope applies in the Mort Bay Distinctive Neighbourhood and the Campbell Street Hill Precinct), and a 6m-wall height may be suitable where two-storey development is dominant.

· New development is required to be located in the Building Location Zone (BLZ) which is a zone determined by the front and rear setback of both the adjacent buildings.

· Side setbacks: minimum setbacks, subject to performance standards, are set out in s B1.2. The LDCP allows variations to the setback requirements at the council’s discretion, subject to meeting the performance criteria in s B1.2.

· Front setbacks are to be a minimum of 1 metre, however where the established setback in the immediate area (within 3 houses of the subject land) is different, the setback for new development should be consistent with the prevailing setback (Controls for Mort Bay Distinctive Neighbourhood Part 10.6.5 of the LDCP).

· Two car parking spaces are required as a maximum for resident parking for each dwelling and there is no ‘minimum’ requirement under s A8 of the LDCP.

· Campbell Lane is defined as a ‘narrow lane’ under the laneway policy under Part B4.3 of the LDCP. This Policy suggests the type of preferred development along lanes, less than 5m in width, and would include: garages, workshops, garden sheds and storage rooms. Dwellings are discouraged along narrow lanes and the service character of the lane must be maintained. Part B4.3 of the LDCP also contains design controls, including that roof forms should include gabled roofs pitched from the sides, or skillion roofs located behind parapets. Roof openings should be flush to the roof and should not represent dormer windows or the like whether or not they are visible from a public place. The sidewall height shall be limited to a maximum of 3m with a 45-degree envelope control, allowing a roof height limit of 5m.

· Relevant performance based requirements under the LDCP are:

A4	Urban Form and Design
A5	Amenity
A7	Heritage and Conservation (relevant primarily because the site is in the Balmain conservation area and because there are heritage items in the vicinity)
A8	Parking Standards and controls. This section includes the numerical standards for parking as well as design parameters relevant to the functionality of proposed parking.
A10	Suburb Profiles. The site is located in ‘Balmain Suburb (A10.6) the Mort Bay Distinctive Neighbourhood’ (A10.6.5) and ‘Campbell Street Hill’ precinct.
B1.1	Site Layout, subdivision and design.
B1.2	Building form, envelope and siting (including setback and envelope controls).
B1.3	Car parking
B1.4	Site drainage and stormwater control
B1.5	Elevations and materials
B1.6	Front gardens and dwelling entries
B1.7	Fences
B2-2.7	Ecologically Sustainable Development
B2.8	Landscaping
B3.1	Residential amenity and energy efficiency
B3.2	Private Open Space
B3.3	Visual Privacy
B3.4	Access to views
B3.5	Acoustic privacy
B3.6	Dormer Windows
B4.1	Alterations and Additions to existing dwelling houses
B4.3	Laneway development
B4.4	Foreshore development

18 No development standards relevant to the land are found under the SHREP and SHDCP; however, there are objectives and ‘heads of consideration’, including those relating to the natural, scenic, environmental, cultural and heritage qualities of foreshore land.

19 Clause 2 of the SHREP sets out relevant aims and objectives and cl 18 of the SHREP sets out relevant heads of consideration including, considerations relevant to the appearance of the development from the waterway and foreshores (cl 18(a)) and the effect of development on any conservation area (cl 18U)).

20 The SHDCP performance criteria requires new residential development to be constructed in a style, form and spacing compatible with existing residential development, with “…vegetation is integrated within the development to minimise the contrast between natural and building elements.”

The proposal and its history

21 Development application No D/2004/197 was lodged with the respondent council on 16 April 2004, to alter and add to the existing dwelling on the land.

22 It is proposed to:

· Internal reconfigure the ground floor; to construct a new bedroom and study within the existing kitchen, dining and living area.

· Construct a first floor addition, to contain a new kitchen and living/dining area.

· Construct a deck on the new first floor, on the northern and eastern sides.

· Construct a new garage, adjacent to the lane with a pool near and parallel to the northern boundary.

23 It is proposed to replace the hipped roof of the existing cottage with a ‘gable-ended’ roof structure, with the gable ends oriented towards the side boundaries. A new ‘pop-up’ skillion roof of contemporary style, tilting slightly up towards the west is proposed over the western part of the extension.

24 From Campbell Street, the ground floor weatherboard siding would be maintained, with new corrugated zinc gables above.

25 The western end of the first floor extension would be two-storeys in height. The ground floor would be sheeted in weatherboard and the first floor, would be mainly glazed. The first floor deck would be provided with a handrail and a stainless steel wire balustrade.

26 The first floor extension would maintain the existing side setbacks on the southern side of 900mm. On the northern side, the main enclosing wall would be set back 1500mm, and the deck would extend to within 100mm of the common boundary with No 66 Campbell Street. The new gable-ended roof above would be setback 100mm.

27 The proposed garage would be setback around 100mm to the southern boundary and a 4.5m setback to the northern boundary with open stairs to the laneway and the pool proposed in that setback. It would have a variable floor level of around 8.84m AHD set at the mid-point of the garage door on the lane. The garage would have a wall height of about 3.4m, and an overall height of about 3.6 at its maximum to the top of the planter box.

Notification

28 The application was notified in accordance with DCP36 to nearby owners and occupants from 14 July 2004 to 28 July 2004 and the council received five letters against and one in support.

29 Resident submissions included:

In Opposition	In Support
D Porter (0/2003/202) 66 Campbell Street Balmain	Mr W Cloughessy The Old Place Campbell Lane Balmain
J Porter (0/2003/202) 66 Campbell Street, Balmain,
Mr T Turner 11 Trouton Street Balmain
Mr R Bryan 51 Campbell Street, Balmain
Mr J McPherson 9 Trouton Street Balmain

30 Issues raised included:

1. The proposal is over development of this site, being excessive in floor space, and would not comply with the applicable FSR.

2. Loss of feed tree for bats.

3. Excessive height.

4. Alteration to roof form is unsympathetic to heritage values.

5. Overlooking from upper deck and breach of rear building line.

6. Impact on views due to height.

The council’s decision

31 The application was determined under delegated authority by the Building and Development Assessment Unit, (DAU) at its meeting held 27 October 2004 and refused consent for eight reasons:

1. The proposal achieves a floor space ratio of 0.86:1 [now 0.69:1 in Exhibit D] and fails to comply with the requirements of Clause 19(2) of

Leichhardt Local Environmental Plan 2000.

2. The proposal achieves a landscaped area of 29.7% [now calculated by the architect as 47.5% in Exhibit D] and fails to comply with the requirements of Clause 19(3)(a) of

Leichhardt Local Environmental Plan 2000.

3. The proposed loss of the existing hipped roof form and the provision of a raised ridge behind is detrimental to the conservation area and streetscape and is contrary to the objectives of Clause 13(2)(b), Clause 13(2)(c), Clauses 15, 16(7) and 16(8) of

Leichhardt Local Environmental Plan 2000.

4. The proposal is contrary to the desired future character of the Campbell Street Hill neighbourhood precinct identified within Part A10.6.5 of

Leichhardt Development Control Plan 2000.

5. The proposal is contrary to Part B1.2 of

Leichhardt Development Control Plan 2000 in regards to side setbacks.

6. The proposal is contrary to Part B3.3 and Part B3.5 of

Leichhardt Development Control Plan 2000 in regards to visual and acoustic privacy.

7. The proposal is contrary to Part B4.3 of

Leichhardt Development Control Plan 2000 relative to maximum heights of development to narrow lanes.

8. The proposed height and scale of the additions is not supported against a consideration under Part B3.4 of

Leichhardt Development Control Plan 2000.

The hearing

32 The appeal was filed on 5 January 2005.

33 At the hearing the court heard oral evidence and received written evidence on behalf of the respondent council from:

· Mr David and Mrs Jennifer Porter, residents of No 66 Campbell Street, Balmain;

· Mr R Staas, heritage architect; and

· Ms M D Laidlaw, town planner.

34 On behalf of the applicant written evidence was supplied by:

· Mr P Davies, heritage architect; and

· Mr Grant Crowle, applicant and resident of No 64 Campbell Street, Balmain.

The issues

35 On 1 March 2006 the council filed an amended statement of issues.

Issue 1: Floor space ratio
The proposed development does not comply with the FSR development standard set out in Clause 19(2) of Leichhardt LEP 2000.
Clause 19(2) -Floor Space
...consent must not be granted to the carrying out of residential development on land within a density area if it would result in the floor space ratio exceeding the ratio shown for the density area as follows: -Balmain -0.7:1.
The proposal would result in the following floor space ratio (FSR):

Floor Space (m2)	Site Area (m2)	FSR
232.4	317.2	0.73:1

Council's FSR figure is based on a calculation of floor areas including:
The ground floor of the dwelling house,
The first floor of the dwelling house, excluding the stair void;
The garage;
In all cases, Council's calculation of FSR includes wall thicknesses.
The Council says the garage must be included as FSR, because it is of a height more than one metre above ground and wall thicknesses must also be included, in accordance with the definition of gross floor area.
This definition is:
The total of a building's floorplates, measured between the outer edges of the outside walls or the centre line of any party wall, and includes mezzanines, attics, internal car spaces, garages, lofts and studios. It does not include projections outside the external walls of the building, paved areas, voids or basements used for car parking, where the car parking area does not protrude more than 1 metre above ground level.
Ground level is defined as: ‘the level of the ground at 24 October 2000’
The objectives of the floor space ratio standard are set out in Clause 17(a) of Leichhardt LEP 2000, specifically '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, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character. More generally, the purpose of the FSR control is to control the bulk and scale of development and its consequent impacts.
Council does not support the FSR sought by the applicant because:

Issue 1A: Visual bulk
Council says that the visual bulk impacts upon the laneway and upon adjoining properties, and particularly 66 Campbell Street, are unreasonable irrespective of the FSR issue, for reasons particularised under Issue 1.

Issue 2: Landscaped area and quality of landscaping:
The proposed development does not comply with the Landscaped Area development standard set out in Clause 19(3)(a) of Leichhardt LEP 2000.
Clause 19(3) -Landscaped Area
Clause 19(3) of LEP 2000 requires:

(a) the minimum landscaped area for residential development is 40% of the site area, and

(b) 25% of the landscaped area required under paragraph (a) or 10% of the total site area:

(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.

The proposal would result in the following Landscaped area:

Landscaped Area (m2)	Site Area (m2)	Landscaped Area (%)
68.41	317.2	21.6


Council's figure includes (a) the garden area at the rear of the house, between the deck and the proposed garage… and (b) the front verandah (taking into account it appears to be formed over an originally retained area of ground).
Council's figure excludes: (a) the western and nominal eastern side setback, (b) the footprint of the house and proposed garage and access stair, (c) the pool (having regard to the fact this is an elevated structure, particularly relative to the area adjacent to the eastern boundary) and (d) the deck at the rear of the house (this being more than 500 mm above ground level).
If the applicant is agreeable to the western side setback of the house being landscaped, then Council could include this figure also, however the landscaped area would remain (at 27%) below the required 40%.
Relevant definitions in relation to 'Landscaped Area' in Leichhardt LEP 2000 are:
Landscaped area3 means the part of a site area at ground level:

Ground level means the level of the ground at 24 October 2000.
In relation to 'ground level' it should be noted that the applicant has filled substantial areas of the rear yard. Levels at 24 October 2000 can be ascertained by reference to survey plan prepared by T J Gilbert and Associates, job 2889, date 30.7.01. This survey plan shows that, for example, the pool, with a 1.2 metre high block wall balustrade as shown on drawing 3/6, elevation 4 (ie RL 12.4 in total), will be between 2.9 m and 4 m above the surveyed rear garden levels of 66 Campbell Street, (at RL 9.5 and RL 8.37 respectively). Similarly, the pool would be some 3.5 m above the level of the subject site (level of RL 8.85 shown at the rear boundary). An indication of the height of the pool and surround above No 66 at the rear, and also above the lane, can be appreciated by reference to drawing 4/6 (Campbell Lane elevation) but noting that this elevation does not show the full height of the 1.2 metre high solid balustrade, extending around the rear boundary.
The applicant has not submitted an objection under SEPP 1 -Development Standards and accordingly the development application cannot be approved.

Given the significance of the variation and the impact of the pool and garage structures in (a) removing all actual landscaping in deep soil adjacent to the lane and eastern boundary and (b) removing all potential for landscaping in deep soil adjacent to the lane and eastern boundary, Council would not support a SEPP 1 for this development.

Issue 3: Non-compliance with the provisions of B1.2 of DCP Building envelope form and siting
The- proposal does not comply with the side setback requirements set out in Part B1.2 of the DCP which would require the rear extension to be set back in excess of 4 m and the pool structure to be set back 1.8 m. Although Section B1.2 of the DCP provides that Council may consider variations to the side setback control where specified criteria are met, Council considers that the proposal does not meet these criteria in that:

The proposal does not comply with the Building Location Zone requirements of Part B1.2 of OCP 2000, in that the proposed first floor deck extends to the north of both of the first floors of Nos 62 and 66 Campbell street. The length of the first floor deck will exacerbate visual and aural privacy impacts, as well as visual bulk impacts, and cannot be supported.

Issue 4: Appropriateness of built form. Elevations and materials
The Council considers that the removal of the original roof form of the cottage is contrary to the Heritage and Conservation provisions of LEP 2000 (Clause 15 and 16(8) because this roof is typical for this style of cottage and contributory to the significance of the conservation area. Further, the proposed roof form of the addition, which will be visible from side views from Campbell Street (ie from the south east) as well as from Campbell Lane is contrary to the preferred roof form (controls for Mort Bay, DCP 2000, 'maintain roof forms with pitched, gable or hipped roofs') and if approved it would be detrimental to the conservation area.
The proposed addition is generally contrary to the objectives and provisions of Part B4.1 of DCP 2000 (Alterations and additions to existing dwelling houses), including the guideline 'extensions should be subordinate to the existing roof' and the general guidelines for 'extensions to the rear'.
In terms of its design, the proposed addition is inappropriate and detracts from the architectural integrity and character of the existing dwelling and it would have a detrimental incremental impact on the heritage conservation area. In particular the loss of the existing hipped roof form and the provision of a raised and raked roof profile behind would be detrimental to the conservation area and streetscape. The proposed addition will confuse and undermine the fundamental character of the existing dwelling and its contribution to the conservation area, including side views from the street ('streetscape') and from the laneway.

Issue 5: Laneway development
The proposed development would not comply with Part B4.3 of Leichhardt Development Control Plan 2000 relative to maximum heights of development to narrow lanes. The proposal does not comply with the DCP Laneway policy, because the wall (ie to the pool and to the garage terrace) facing the lane is in excess of 3 m along-the laneway (a maximum of 4 m at its north eastern corner -see Campbell Lane elevation, but factor in the height of the balustrade which has not been shown extending across this boundary), whereas the DCP provides for a maximum of 3 m.
The proposed development is considered inconsistent with the objectives of the Laneway Policy (Part B4.3) because of the height of the garage/pool structure and their visual dominance, compared to the narrowness and informal character of the lane. The lane has heritage and conservation significance in its own right, due to this informal character and the sandstone kerbing that remains along its length.

Issue 6: Visual and acoustic privacy
The proposal is contrary to Part B3.3 and Part B3.5 of the Leichhardt Development Control Plan 2000 in regards to visual and acoustic privacy. In particular the rear upper deck extending along the full length of both the northern and eastern side of the first floor living room will cause significant and unreasonable overlooking to adjacent properties, in particular No. 66 Campbell Street (the property to the east) due to the location of the elevated deck adjacent to the eastern boundary and its projection northwards of the existing building line, and the visual and aural impact that will arise from the fact that this deck serves the main living areas of the dwelling house as proposed.

Issue 7: Vehicular access
The applicant has not satisfied the Council that acceptable vehicular access can be provided to the proposed garage, having regard to the narrow width of Campbell Lane, which would restrict the ability to manoeuvre in to and out of the garage, and the sloping nature of the lane.
Particulars of this issue will be confirmed upon receipt of formal assessment by Council's engineer.

Issue 8: Encroachment of new works upon No 66 Campbell Street
The development application drawings appear (eg 2/6) to show encroachment by the roof of the new extension, over the eastern boundary and land within 66 Campbell Street.

Issue 9: Inadequacy of plans
Not pressed.

Issue 10: Issues raised by residents
Issues raised:

A. Over development and excessive FSR.
B. Excessive height.
C. Alteration to roof form unsympathetic to heritage values.
D. Overlooking and aural privacy impact from upper deck and breach of rear building line.
E. Excessive bulk and form.
F. Impact of pool, including bulk, height, loss of previously agreed landscaping.
G. Encroachment of new works upon No 66 Campbell Street.
H. Impact on view due to height.

36 Before proceedings commenced the applicant had amended the plans to achieve compliance with the FSR controls and this issue was no longer pressed.

37 The salient issue was the streetscape impact of the proposal in the heritage conservation area. There were other issues that were addressed including:

· Impact of fence and pool on the neighbouring property at No 66 Campbell Street;

· Privacy impacts of first floor verandah on the adjoining property at No 66 Campbell Street.

The evidence and findings

Streetscape impact of the proposal in the heritage conservation area
38 Messrs Staas and Davies, the heritage experts, agreed, [Note: Exhibit 9, p 1]:
· This site is located in a conservation area where development is required to be designed to meet the objectives and specific controls of the LEP/DCP.
· The existing house is a contributory element in the streetscape of Campbell Street and to the general character of the Balmain conservation area.
· Existing additions to the house are acceptable in heritage terms as a contemporary approach to additions and alterations.
· Campbell Laneway is a relatively rare, substantially intact, surviving example of Victorian road construction within the Balmain area.
· The predominant roof form in the immediate area is hipped.
· There is an existing approval for car access to the rear of the site from the laneway to a hardstand area, [This was still in dispute]. This has not been constructed. .
· Contemporary design solutions are valid in a variety of heritage contexts.
· The principal heritage issue in this case relates to the building form of the house addition as it affects the existing roof form and visual character in Campbell Street.

39 The heritage experts disagreed on the question of the built form of the additions. Mr Staas considered the proposed built form of the proposal to be unacceptable, as it would adversely impact on the contributory character of the existing building in the streetscape of Campbell Street. He stated, [Note: Exhibit 9, p 2]

The change of the front roof form from a hipped form to a partial gable form as a screen to the bulk of the skillion addition would unacceptably alter the existing character of this group of buildings within the conservation area in contravention of the aims and objectives set down by Council for development.

40 Mr Davies considered the proposed built form was appropriate for its setting and the change of roof form from a hip to a gable form would successfully screen the upper floor from the street. He did note that some parts of the addition would be seen obliquely from viewpoints in the street.

41 I accept the evidence of Mr Staas and that “[t]here has been no attempt to subordinate the rear addition to the original form or scale of the contributory character of the existing cottage,” [Note: Exhibit 8, para 3.2].

42 I am satisfied that the proposed pseudo-gable ended roof extension would not demonstrate the desired sensitivity in the context of the conservation area. The proposal when viewed from Campbell Street would be gross and out of character with the area and as a result the application fails.

43 I observed that as the proposed gabled-ended roof would enclose only a kitchen and this could be enclosed under the rearward part of the roof. It would seem that the only purpose of the gabled-ended roof would be to screen the first floor extension from viewpoints in the street as suggested by Mr Staas. I am satisfied that the hipped roof form over the existing dwelling could be retained by redesign and the proposal could be made more respectful of the streetscape.

44 Despite this I am of the opinion, that it would be beneficial for the applicant to explore the option suggested by Ms M Lyons, of the council, that any additional floor might be provided by excavating under the existing rear additions. By this means the need for a new first floor would be obviated and the original roof form could be maintained. This would overcome many of the deficiencies of design presently before the Court.

Impact of fence and pool on the neighbouring property at No 66 Campbell Street

45 Mr Hannaford submitted that the applicant would agree to lower the ground level of the grassed section of the garden by 500mm and to lower the height of pool by a similar amount to 10.6m AHD. The applicant would then be able to maintain the height of the existing fence that was increased in height when the dwelling was extended in around 2002. Mr Hannaford also submitted that the top of the laneway wall of the garage could be brought down a similar amount and this would then comply with the council’s height control on the laneway of 3m, under Part B4.3 of LDCP.

46 The council provided the Court with a survey of No 64 Campbell Street, [Note: Exhibit 6]. This survey defined the level of the ground at 2001 and gave a fair indication of ground levels before the applicant carried out the original alterations and additions. Mr Porter of No 66 Campbell Street, sought to maintain those original levels so that his property would not be overborne by the proposal and the level of the original fences could be maintained.

47 I am satisfied that despite the amendments to the levels suggested by the applicant, the proposed new fence and pool would not result in a neighbourly design and might be lowered more.

48 I am satisfied that it would be preferable to seek to maintain the original 2001 surveyed terraced levels of the rear garden and to lower the height of the northern boundary fence common with No 66 Campbell Street.

49 Also the applicant might give consideration to relocating the proposed lap pool to the southern uphill side of the rear garden, to better maintain the original levels of the ground and fences.

Privacy impacts of first floor verandah on the adjoining property at No 66 Campbell Street

50 During the hearing, Mr Hannaford indicated that the applicant would be willing to submit to a condition requiring the deletion of the first floor verandah on the northern side of the proposed addition and to replace this verandah with a roof. The applicant also agreed to step back the proposed verandah to provide a ‘void’ at the first floor on the northwestern corner of the addition. By this means the first floor deck would be brought in line in plan with the existing ground floor deck. Also, the applicant agreed to reposition the external wall of the first floor addition a further 500mm back. Mr Hannaford submitted that this would remove most of the issues relating to privacy of the occupants of the next-door property at No 66 Campbell Street.

51 These amendments to the design would largely avoid direct overlooking and loss of privacy to that next-door property.

52 The inclusion of privacy screens as suggested by the applicant is not preferred as in any new design such devices should only be used as a last resort.

53 For the reason of the adverse streetscape impact of the proposal in the heritage conservation area, the appeal is dismissed.

Orders
54 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No D/2004/197 lodged with the respondent council on 16 April 2004, to alter and add to the existing dwelling on the land at Lot 7, DP 778803, being No 64 Campbell Street, Balmain, is refused consent.

3. The exhibits except for Exhibits A and B are returned.

S J Watts

Commissioner of the Court

sw