Gus Fares v Leichhardt Council

[2003] NSWLEC 325

>

Land and Environment Court

of New South Wales

CITATION:

Gus Fares v Leichhardt Council [2003] NSWLEC 325

PARTIES:

APPLICANT:
Gus Fares

RESPONDENT:
Leichhardt Council

FILE NUMBER(S):

10831 of 2003

CORAM:

Watts C

KEY ISSUES:

Development Application :- Alter and add to an existing dwelling and erect a two new dwellings at the rear and to strata subdivide
Merit considerations including - whether or not the proposal would be appropriate in the streetscape
and whether or not the rear portion of the subject land should be landscaped so as to maintain the vegetated strip in the rear yards of nearby and adjoinging properties.

LEGISLATION CITED:

Leichhardt Local Environmental Plan 2000, (LEP2000)
Leichhardt Development Control Plan 2000, (DCP2000)
Draft Amendment No 11 of LEP 2000, (DLEP Am11)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING:

25 November 2003

DATE OF JUDGMENT:

12/03/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Clay, barrister instructed by
Mr P Saab, solicitor
of Macquarie Lawyers

RESPONDENT:
Mr G A Green, solicitor
of Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10831 of 2003

Watts C

3 December 2003

Gus Fares

Applicant
v

Leichhardt Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Leichhardt Council (the council) to refuse a development application to alter and add to an existing dwelling, to erect two (2) x two (2) bedroom two-storey attached dwellings, to subdivide under Torrens title the land into two allotments and to subdivide under strata title the two new dwellings, at Lot 15 DP 921216, being No 28 Henry Street, Leichhardt.

2 The development application has now been amended and is described as an application to alter and add to the existing dwelling and to erect two (2) x two (2) bedroom two-storey detached dwellings and to strata subdivide the land into two allotments. This change was required as a result of amendments to the Leichhardt Local Environmental Plan 2000, (LEP2000). In a further amendment the floor space ratio (FSR) was reduced to comply with the allowable FSR of 0.5:1.

3 I visited the land in company with the parties on the morning of the hearing.

4 I have concluded that the application should fail for reason of the adverse environmental consequences that flow from a breach of the building location zone, (BLZ).

5 By consent stormwater and site contamination issues were excluded from consideration in these proceedings.

The land

6 The land is situated on the western side Henry Street, midway between the City-West Arterial and the junction with William Street. The land is rectangular in shape with a frontage of 12.19m to Henry Street and 50.29m deep, with an area of 613.2m2.

7 Erected on the land is a single-storey, brick dwelling with tiled roof and two outbuildings in the backyard. The backyard is concreted and there are no trees on the land. The land slopes down from the street to the rear with an overall fall of around 1.6m. The slope of the land makes gravity discharge of stormwater difficult and at the time of the hearing further clarification of this aspect was still required.

8 The area is predominantly residential. Dwellings in Henry Street are either single-storey and two-storey detached dwellings or two-storey townhouses. Opposite the land is a Greek Orthodox Church, to the rear is a panel beating establishment with nil setback along the common boundary with the land, and a liquor store is further to the north near the City-West Arterial. There is an acoustic screen at the end of the street shielding the street from traffic noise. The land is under the flight path of Sydney Airport and is subject to aircraft noise.

9 Adjoining to the west in Norton Street is mixed commercial and residential.

Relevant planning controls

a Leichhardt Local Environmental Plan 2000, (LEP2000)

10 Under the provisions of the LEP2000, gazetted 22 December 2000, the land is zoned residential and the proposed use is permissible with consent.

11 Amendment No 1 to LEP2000 was gazetted 3 May 2002, and introduced an amended definition of site area, to exclude driveways less than 3.5m wide from the calculation of site area:

Site area means the total area of an allotment or allotments, which comprises or comprise the proposed development site. It does not include any area of land that is:
(a) less than 3.5 metres in width, and
(b) primarily used for access.

12 Under LEP2000, the following objectives apply:

• Clause 13(1) - Ecological sustainable development;
• Clause 13(2) - Built and natural environment;
• Clause 13(3) - Transport and access;
• Clause 13(4) - Heritage; and
• Clause 17 - Housing.

13 Under LEP2000, Clause 14, Urban Design Principles applies.

14 Under LEP2000, other relevant clauses are:

• Clause 16(7) - Development in the vicinity of an Item of Environmental Heritage;
• Clause 19(2) - Floor space ratio (0.5:1);
• Clause 19(3) - Landscaped area (40%) and soft landscape (10%);

b Leichhardt Development Control Plan 2000, (DCP2000)

15 DCP2000 became effective from 22 December 2000. One of the most relevant and significant of the requirements of DCP2000 relates to the ‘Building Location Zone’ (BLZ), [Note: Exhibit 2 p B7]:

Building Location Zone Guidelines
Front and Rear Setbacks
In addition to the siting of a building, the setbacks proposed must respect existing setbacks on adjoining properties and the street alignment. They should ensure the efficient use of the site, protect the amenity of residents, maintain established private open space and landscape patterns and reinforce the character of the neighbourhood. Space around the building must be designed to accommodate access, useable private open space, landscaping requirements, site facilities and parking, where required.

New development or an extension to an existing dwelling is to be located within the Building Location Zone (BLZ). This is a zone defined by the average front and rear setbacks of both the adjacent buildings on either side of the subject site. The BLZ is that part of the subject site where it can be reasonably expected that a building will be located… This includes 2-storey development and first floor extensions to existing dwellings, however in most circumstances development above the first floor may not occupy the entire area of the BLZ, due to the resulting bulk and scale issues.

Note: With the exception of corner sites, depending upon circumstances, the extent of the BLZ does not refine or relate to side setbacks.

The BLZ is determined only by the main buildings on the adjacent properties. The location of ancillary sheds, garages, external laundries, toilets or other free-standing structures on the site is not relevant in determining the BLZ.

Where it is proposed to build outside of the BLZ, the onus is upon the applicant to justify that the proposed building footprint is appropriate. Issues which must be addressed in justifying a building footprint extending outside of the BLZ include, but are not limited to:

• visual aspect of the bulk and scale, as viewed from adjoining properties;
• amenity to adjacent properties (ie sunlight, privacy, views);
• location and retention of existing significant vegetation;
• compliance with applicable statutory controls, including Floor Space Ratio and minimum landscaped area of 40% of the site;
• the existing streetscape and character and scale of surrounding development; and
• the adequacy of the size, dimensions, privacy and solar access of private open space for outdoor recreation and landscaping.

16 Part B1.2 relates to building form, envelope and siting and the following design principles and rationale is relevant, [Note: Exhibit 2 p B6]:

Principles
Plan and design new housing, and additions and alterations to existing housing, to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscaped areas.

Plan new housing to provide a balance between building and spaces, which respect the character of the area.

Rationale
It is important that new development and extensions relate to the established setting and character of neighbouring buildings, and the wider locality. This character is determined by the scale, massing, siting, size, height, spacing, form, intensity and use of surrounding buildings. Apart from establishing the character of an area, design that addressed these issues serves to minimise visual impacts, preserve outlooks and protect privacy.

c Draft Amendment No 11 of LEP2000, (DLEPAm11)

17 The aim of the DLEPAm11 is to rationalise the objectives of LEP2000, in particular Clauses 13(2), (3) and (4)(omitted), Clauses 15, 17 (which clarifies the application of density controls), 20, 24 and 27.

The proposal and its history

18 Development application No D/2002/321 was originally lodged with the respondent council on 12 May 2002, and has been amended. It is now proposed to alter and add to the existing dwelling, to erect two (2) x two (2) bedroom two-storey detached dwellings and to strata subdivide the land into two allotments.

19 The two-lot subdivision required a driveway less than 3.5m wide. As a result, of the gazettal of DLEPAm1 the site area of the rear lot was effectively reduced by 70m2. Thus the FSR of the proposal would have been 0.54:1, and would not have complied with the 0.5:1 permitted FSR. The proposal was been further amended to comply with the 0.5:1 FSR with a proposed FSR of 0.48:1.

20 Other amendments to the original plans included; a three-car semi-open carport in lieu of two car parking spaces; the deletion of a proposed attic room; strata title subdivision in lieu of Torrens title and the reduction in the floor area of the existing dwelling.

21 As stormwater and site contamination issues require further attention these matters have been excluded from consideration in these proceedings. The plans before the court show the existing levels on the land maintained not raised up as might have been the case with a gravity-fed stormwater system.

22 The application was notified to nearby owners and occupants and the council received twenty-one submissions. Concerns included:

• Insufficient car parking - street often does not provide enough parking due to the existing Church demand;
• In previous applications which were rejected the preservation of the large rear yards was identified as a valuable planning outcome;
• The development appears to be of poor quality -the addition of small, poorly built dwellings will not enhance the character of the area;
• The proposed buildings are bulk and do not comply with floor space ratio and therefore should be rejected;
• The development would set the precedent for the construction of townhouses on other large blocks in this street;
• Henry Street is a quiet street with single residences dominating the streetscape;
• Large scale remediation will be required involving dust, contaminated soil be transported through the street and similar problems;
• Privacy from first floor windows; and
• Noise from people coming and going, lights being turned on and off; cars entering and leaving etc

23 By notice dated 18 July 2003, despite a recommendation from its officers for approval, the council refused the application for the following reasons, [Note: Exhibit 3 p 66]:

1. The proposed development does not comply with floor space ratio provision under clause 19(2) of Leichhardt LEP 2000 (LEP 2000) and Council does not support variation to the development standard using SEPP 1 as the standard is not unreasonable or unnecessary in the circumstances of the case.

2. The proposed subdivision will not provide an appropriate setting for development and protect the urban form, scale of the locality in accordance with clause 30 of LEP 2000.

3. The proposed subdivision does not provide sufficient driveway access and adequate clearance from the wall of the existing dwelling that is to be retained on the site.

4. The proposed development is not consistent with the General Objectives under Clauses 13(2)(a) and 13(2)(b) of LEP 2000, as it is considered to be an over-development of the subject site.

5. The proposed development is not consistent with the Urban Design Objectives under Clause 14 of LEP 2000, as it would result in a scale of development incompatible with surrounding development, and contribute to the erosion of the character and amenity of the locality.

6. The proposed development is not consistent with the Housing Objectives under Clause 17 of LEP 2000, as it would result in a loss of amenity and would not be compatible with the style, orientation and pattern of surrounding development.

7. The proposed development does not comply with the minimum car parking requirements under Part A8.0 of Leichhardt DCP 2000 (DCP 2000).

8. The proposed development does not comply with the suburb profiles under DCP 2000 as it is not compatible with the desired future character of the Helsarmel precinct, which requires that the consistency of subdivision pattern be preserved.

9. The proposed new units in the development do not comply with the side setback and building siting controls in Part 81.2 of DCP 2000.

10. The proposed development does not comply with the building location zone provisions of Part B1.2 of DCP 2000, even providing for additional development on the adjoining sites.

11. The proposed development will result in an unacceptable increase in traffic on Henry Street.

12. The proposed development will result in an unacceptable parking impact on Henry Street.

The hearing

24 The appeal was filed on 18 July 2003.

25 At the hearing the court heard evidence on behalf of the respondent council from:

• Mr C W Gibson, resident of No 26 Henry Street, Leichhardt, [Note: Exhibit 8, statement of evidence];
• Ms M C Petrozzi, resident of No 22 Henry Street, Leichhardt, [Note: Exhibit 9, statement of evidence], representing also Mr Cannavo, her father, who resides at No 30 Henry Street, Leichhardt; and
• Mr A D Smith, consultant town planner, [Note: Exhibit 1 Statement of evidence].

26 On behalf of the applicant evidence was given by:

• Mr K A R Burrell, consultant town planner, [Note: Exhibits B and C: Statements of evidence and reply].

27 Mr D Paton, team leader, drainage and development, Leichhardt Council and Mr W R Ryall, environmental consultant was not required to give oral evidence at this stage.

28 On 28 April 2003 the council filed the first statement of issues. On 25 August 2003 the final statement of issues was filed.

1 Floor Space Ratio
1. The proposed development does not comply with the required floor space ratio provision under Clause 19(2) of Leichhardt Local Environmental Plan 2000 ("LEP 2000"), and compliance with that development standard is not unreasonable or unnecessary in the circumstances of the case.
2. Whether an objection to compliance with the provisions of Clause 19(2) LEP2000 pursuant to State Environmental Planning Policy No 1 (SEPP1) should be supported and upheld.

Subdivision
3. The proposed subdivision will not provide an appropriate setting for development and will not protect the urban form, scale and density of the locality in accordance with clause 30 of LEP 2000.

4. The proposed subdivision does not provide sufficient driveway access and adequate clearance from the wall of the existing dwelling that is to be retained on the site.

Aims and objectives
5. Whether the proposal satisfied Clause 7(3) Land Use Objectives of LEP2000.

6. The proposed development is not consistent with the General Objectives under clause 13(2)(a) and (b) of LEP 2000, as it is considered, to be an overdevelopment of the subject site.

7. The proposed development is not consistent with the Urban Design Principles Clause 14 of LEP 2000 as it would result in a scale of development incompatible with surrounding development, and contribute to the erosion of the character and amenity of the locality.

8. The proposed development is not consistent with the Housing Objectives of Clause 17 of LEP 2000 as it would result in a loss of amenity and would not be compatible with the style, orientation or pattern of surrounding buildings.
Urban design, siting, layout and built form
9. Whether the proposal satisfies the objectives and requirements of part A4.0-Urban form and design and Part A 10.2-Leichhardt suburb profile of Leichhardt Development Control Plan 2000 (“DCP 2000”), particularly with respect to the clause 10.2.3-Helsarmel Distinctive Neighbourhood, and the provisions of Clauses B1.1, B1.2 and B1.5 of DCP 2000 relating to side setbacks and building siting controls and the Building Location Zone, (‘BLZ”).
Amenity
10. Whether the proposal is acceptable with regard to the impact upon the residential amenity of adjoining properties with respect to Clause A5.0-Amenity, Clause B3.1-Solar access, Clause B3.3-Visual privacy and Clause B3.5-Acoustic privacy of DCP 2000.

Car parking and traffic generation
11. The proposed development does not comply with the minimum car parking requirements in Part A8.0 of Leichhardt DCP 2000 ("DCP 2000).

12. The proposed development will result in an unacceptable increase in traffic in Henry Street.

13. The proposed development will result in an unacceptable parking impact on Henry Street.

Site contamination and remediation
14. The "Targeted Environmental Assessment" dated November 2002 and the “Remediation Action Plan” dated January 2003 are unsatisfactory in the following respects.
(a) no detailed Site Investigation has been conducted as required by clause 3.3(d) Leichhardt DCP 42 or as recommended by the applicant's contamination consultant;
(b) no adequate investigation of prior uses of the site has been undertaken and in particular the presence or contents of two underground storage tanks has not properly been investigated;
(c) incorrect site criteria have been used to assess levels of contaminants to determine site suitability;
(d) an insufficient number of sample locations were employed in order to determine the environmental condition. of the site;
(e) an insufficient range of chemicals was analysed given the uncertainty of the nature of chemicals which have been employed on the site in the past;
(f) the reliability of results was not tested in accordance with the NSW Environmental Planning &Assessment Act, (1997) "Guidelines for Consultants Reporting on Contaminated Sites';
(g) the environmental condition of the site was not assessed in accordance with the NSWEP (1998) "Contaminated Sites: Guidelines for the NSW Site Auditor Scheme”;
(h) the Remediation Action Plan is premature and unsuitable to be relied upon as no Detailed Site Investigation has yet taken place. As a consequence of the above-mentioned shortcomings in the contamination investigation and analysis of the site, the consent authority cannot be satisfied that the site is, or would be after remediation, suitable for the proposed development in accordance with clause 7 of SEPP 55.

15. Whether the Court can be satisfied that the site is suitable for the proposed use in the absence of development consent for remediation.

16. The proposed development is not in the public interest.

17. The proposed development is inappropriate for the reasons given by the objectors.

29 A supplementary statement of issues was filed on 20 November 2003:

Stormwater drainage
1. The proposed aerial pipeline draining from proposed Unit 2 to the on-site detention (“OSD”) storage would be visually intrusive and is not detailed on architectural plans.

2. The proposed ‘side access’ to the OSD storage is inappropriate as it would require access to be obtained via an adjoining property.

3, A safe means of access to the OSD storage for maintenance has not been specified.

Access & Parking
4. Access and manoeuvrability to proposed car space No 1 fails to comply with Australian Standard 2890.1 - 1993.

5. The longitudinal transition from the driveway into the parking area does not comply with AS 2890.1- 1993.

6. The plans does not contain the following details of the proposed driveway and related structures:
(i) long-sections and cross-sections of the driveway;
(ii) height and extent of retaining walls; and
(iii) height of boundary fence (northern boundary).

26 The parties requested the Court to consider the merit issues in advance of stormwater and remediation. The main merit issues are:

• whether or not the proposal would be appropriate in the streetscape; and
• whether or not the rear portion of the subject land should be landscaped so as to maintain the vegetated strip in the rear yards of nearby and adjoining properties.

The evidence and findings as to fact

d Merit considerations; whether or not the proposal would be appropriate in the streetscape; whether or not the rear portion of the subject land should be landscaped so as to maintain the vegetated strip in the rear yards of nearby and adjoining properties.

31 The proposed retention of the existing dwelling would ensure that the streetscape would not be greatly affected by the proposed development at the rear. However, the infringement of the building location zone (BLZ) would cause the proposal to take on a slightly different character in the streetscape to one that would comply. This is largely because, if building were constructed towards the rear, there would be less open space and more building visible from the street down the driveway, between the buildings fronting Henry Street and from adjoining properties.

32 The objectives of the BLZ are to, [Note: Exhibit 2 p B7]:

• ensure the efficient use of the site,
  
• protect the amenity of residents,
  
• maintain established private open space and landscape patterns; and
  
• reinforce the character of the neighbourhood.

33 Taking each of the objectives:

• Efficient use of the site: The applicant’s case is that more efficient use of the site results if the proposal were erected. The council’s case is that efficient use of the site would result if a development to about the same FSR were erected to more closely conform to the BLZ.
• The parties agreed that the BLZ would pass through car space 3 and would enclose less than half of the land towards the front, [Note: Exhibit 6]. Mr Green submitted, on behalf of the council, that it is accepted that a development fully conforming to the BLZ would be unlikely to provide the same development yield, as proposed, of 0.48:1. It is clear that a single-storey building within that zone, with side and front setbacks, would not achieve the same FSR as proposed. Some two-storey element would need to be included and some infringement of the rear line of the BLZ would be necessary to achieve the same FSR as proposed. However, one might expect, in that scenario, a greater part of the rear yard might be available for open space, especially, if the car parking were contained in a basement below ground.
• Amenity of residents: Both Mr Gibson and Ms Petrozzi gave oral evidence that their amenity would be protected to a greater extent, if the proposal were to respect the BLZ, as otherwise, there would be a loss of backyard ‘buffer’ between their properties and the businesses at the rear fronting Norton Street. Mr Gibson recognised:
  At present 28 Henry Street is the only property, which does not contribute landscaping to this buffer area, but this could easily be rectified by the removal of the large areas of concrete in the rear yard… and [with] appropriate planting.
Ms Petrozzi in the same vein stated:
At present there is a pleasant group of backyards, which adjoin each other to provide a “green belt” to separate our houses from the businesses in Norton Street.
The environmental impacts likely to result from development in the rear yard were overshadowing and overlooking of Mr Gibson’s rear yard. Ms Petrozzi was concerned for the noise, privacy and visual impacts likely to flow onto her father’s dwelling and its rear yard were the town houses erected to the rear of the land.

• Maintain established private open space and landscape patterns: by examining the aerial photograph, [Note: Exhibit 4] it is seen that established private open space exists behind Nos 6 to 32 Henry Street. This open space averages around half the depth of those properties and is mostly heavily landscaped with shrubs and trees. Only the concreted rear section of the subject land interrupts that pattern of vegetation, however, even this rear yard provides the appearance of open space. The proposal to erect two detached dwellings at the rear of the land would not maintain that established private open space and landscape pattern. Even though there would be some landscaping between and near the proposed dwellings, I am satisfied on the evidence that it would reduce the feeling of openness presently experienced. As was seen on the site inspection, with the aid of a height pole, the proposed two-storey town houses would be visible from the rear of the adjoining properties.

• Reinforce the character of the neighbourhood: The fact that the proposed detached dwellings would be visible from the neighbouring rear yards leads me to conclude that the character of the neighbourhood, which is derived at least in part, by the landscaped openness of the rear yards, would be diminished if the proposal were erected. The rearward extension of building and development would also disrupt the streetscape to some extent.

34 Although there would be some landscaping associated with the proposal and the rear of the land would be more vegetated if the proposal were erected, than presently, it is unlikely that sufficient space would be provided for large trees to be established. This is borne out by the landscaping plan, [Note: Exhibit A Sheet 2002-01-08]. Four (4) Grevillea Robyn Gordon maturing to a height of 5.5m are proposed on the northern side of the land and would be visible down the driveway and from nearby properties. One (1) Grevillea Robyn Gordon also maturing to a height of 5.5m is proposed at the southeastern corner of Unit 1. I have also considered the expert evidence.

35 Mr Smith concluded for various reasons the application fails to meet the relevant general urban design and housing objectives of the LEP2000 and therefore fails the test of cl 7(3) of that same instrument, [Note: Exhibit 1 p 34].

36 Mr Burrell was of the opinion that the proposal is an acceptable form of development and concluded, [Note: Exhibit B p 24]:

8.3 The proposal complies with the numerical standards for residential development in the Leichhardt density area.

8.4 The density of the proposal is complementary and compatible to the locality and will not detract from the diversity of building forms and styles characteristic in the streetscape.

8.3 The proposal’s scale is an appropriate and acceptable design solution and will not result in any unreasonable shadow or loss of privacy impacts.

8.4 The proposal satisfies the Leichhardt LEP Urban Design Principles and is consistent with the General Objectives of the plan.

8.5 The proposal has no adverse impact on the area's natural features, character or appearance.

8.6 The proposal has no adverse residential impact on adjoining or nearby properties.

8.7 The proposal is visually stimulating whilst commensurate with the diverse forms in the locality.

8.8 The proposal generally complies with the neighbourhood controls and is acceptable in terms of side boundary setback and building location zone.

8.9 The proposal complies with the controls in Council's DCP for residential development.

8.10 There are no issues arising from neighbours concerns that would warrant the refusal of the application and the proposal is not contrary to the public interest.

37 I accept that the proposal complies with many of the numerical controls applied to residential development in the Leichhardt density area and that the proposed density would be similar to that of other development in the street. However, the one requirement that is not complied with is the BLZ under DCP2000. There was no dispute between the parties in relation to the front setback, as this would be maintained as it is presently. This setback is appropriate in the streetscape.

38 It is permissible to build outside the BLZ in certain circumstances and the onus is on the applicant to prove to the satisfaction of the consent authority that the exceptions apply. I have concluded that the onus is not met in this case.

39 Both of the proposed new two-storey detached dwellings would be in breach of the BLZ and Mr Smith was of the opinion that this would be beyond that contemplated by the ‘exemption’ clause. He said, [Note: Exhibit 1 p 25]:

8.27 The BLZ controls state that a building footprint may extend outside of the BLZ, but does not contemplate a new development being located entirely outside of the BLZ, as proposed by the current application. No less, that development is a full two storeys in height. In terms of the BLZ, the controls contemplate that two storey developments may not occupy all of the allowable BLZ area, let alone extend entirely beyond and outside the BLZ.

8.28 Further, the extent of that development, and the location and design of the 3-car carport and associated manoeuvring area does not "[m]atch and complement existing building forms, private open space and landscaped areas" of neighbouring development...

8.28 Overall, the proposal is inconsistent with the objectives and desired future character for the neighbourhood, where the proposal does not enhance and contribute to the established built-form and landscape character.

40 Mr Burrell in considering the issue relating to the BLZ, contended otherwise, [Note: Exhibit B p 21] and he commented:

• There is no unreasonable visual bulk and scale impact on adjoining property.
• There [are] no unreasonable overshadowing, privacy or view-loss impacts.
• There is no loss of vegetation.
• The proposal increases the amount of landscaping (both hard and soft) on the site.
• The proposal complies with both FSR and landscaping standards.
• There is no impact on streetscape.

The private open space for each dwelling in the development complies with Council's controls in terms of dimensions and size. The yard areas are 54m2, 58m2 and 78.5m2 and are adequate.

41 Despite the truth of some of Mr Burrells comments they do not go far enough, the evidence of Mr Smith and the neighbours that a more compatible design would be one in greater compliance at the rear with the BLZ, persuades me. Such a development would maintain the open vegetated strip at the rear of properties fronting Henry Street.

42 I note that the proposal does provide the required area of landscaping to meet the requirements of the council’s DCP2000. If the proposal were to more closely conform with the BLZ, it is likely that more of the rear yard would be available for landscaping.

43 I am satisfied on the evidence that in order to maintain the character of the area, it would be preferable for more of the yard area to be landscaped in much the same way, as is Mr Gibson’s garden abutting to the south or Mr Cannaro’s vegetable garden abutting to the north.

44 I would refuse the application for reason of its adverse impact in the streetscape and in not maintaining the landscaped strip in the rear of properties.

45 For the above reasons, the appeal is dismissed.

46 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Development application No D/2002/321 lodged with the respondent council on 12 May 2002 to alter and add to an existing dwelling, to erect two new detached dwellings and to strata subdivide (originally under Torrens title) the land into two allotments at Lot 15 DP 921216, being No 28 Henry Street, Leichhardt, is refused consent.
3. The exhibits with the exception of Exhibits A and 7 are returned.

S J Watts

Sw