Hunter v Leichhardt Council

[2007] NSWLEC 394

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Hunter v Leichhardt Council [2007]  NSWLEC 394

PARTIES:
APPLICANT
Wendy Hunter

RESPONDENT
Leichhardt Council

FILE NUMBER(S):     11270  of        2006

CATCHWORDS:        Section  96 Application :- amended application, proposed increase in height, shadow impacts, bulk, overlooking

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Draft Local Environmental Plan 2000

CASES CITED:

CORAM:          Hoffman C

DATES OF HEARING:            20/03/07, 13/06/07, 22/06/07

EX TEMPORE DATE:             13 June 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr A. Hudson, solicitor
of Wilshire Webb

RESPONDENT
Ms J. Walsh, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

13 June 2007

11270 of 2006     Wendy Hunter v Leichhardt Council

JUDGMENT

1. This is Appeal No. 06/11270 in regard to a s 96 amendment application to DA 1997/296 for Lot 11 DP 1031495, being No.s 140 to 148 Beattie Street, Balmain.  The parties are Wendy Hunter v Leichhardt Council.

1. The existing development consent granted a deferred commencement consent to demolish all existing buildings to erect a 3-storey residential flat building of 8 dwellings with basement car parking, and to erect a 2-storey residential flat building of two dwellings at the rear of the site.  The s 96 modification included a number of amendments, the majority of which were approved by the Council on 7 November 2006.  The subject appeal concerns the imposition of condition 3A that states:

   “The proposed additional height of 960 mm must be deleted.  The additional height is considered excessive and inconsistent with the existing low scale development in the area”.

2. The other modifications sought in the s 96 application were increase in the floor to ceiling heights of the dwelling units in the residential flat building facing Beattie Street, as previously mentioned, by increasing it to 960 mm, a change to the external floor material and finishes of the building facing Beattie Street, an internal reconfiguration of units seven and eight located in the north-eastern corner of the site, and the provision of six lifts servicing dwellings in the residential flat building facing Beattie Street.  The only issue in the appeal relates to the raising of the height of the building.

1. The site is located on the southern side of Beattie Street directly opposite its junction with Lawson Street to the north-west.  The site is irregular in shape, having a frontage of 52.94 m to Beattie Street at its north-western boundary.  The south boundary at the side adjoins the dwelling Nos 2 and 8 Rosebery Street over a length of approximately 24 m.  The eastern boundary of the site is shared with No. 138 Beattie Street, and to the rear boundary of No. 138 Beattie Street.  At its west boundary, the site adjoins No. 150 Beattie Street, wrapping around its rear boundary also to the common boundary with properties on Rosebery Street.

1. Beattie Street is on a curve along the frontage of the site and turns through about 45 degrees, meaning that the street elevation of the proposal is convex in form.  As a result, from Beattie Street, it is difficult to see the whole of the street elevation, although that would be possible from the park opposite the site, except for a row of trees along the park boundary.  The site is located in a conservation area, and within the visual vicinity of a number of items of environmental heritage, and it is directly opposite the park known as the Anne Cashman Reserve, which is a landscape heritage item.

1. It is also in the vicinity of heritage items at No. 147 to 151 Beattie Street, under the draft Local Environmental Plan 2000.  The site, at the time of the hearing, is vacant, the existing buildings having been deleted. 

1. The site falls away from Beattie Street with a fall of about one metre.  However, at the rear, there is a drop in level of approximately 2 m to the properties in Rosebery Street.  Because of the topography of the precinct, the site is located within an overland flow path for stormwater and a Sydney Water culvert runs beneath the site.  The property is, therefore, susceptible to flooding in large storm events.  There is a very complex system of drainage in the proposal, both as approved by Council and in the s 96 application.  The locality is predominantly residential and dispersed with commercial and industrial uses.  To the north, the front boundary adjoins Beattie Street, with Anne Cashman Reserve opposite, as previously mentioned.  There is a large tree in close proximity to the northern boundary of No. 150 Beattie Street, with approximately fifty per cent of its canopy overhanging the subject site.

1. No. 150 is a weatherboard cottage freestanding on its own site.  The properties at No. 136 and 138 Beattie Street, on the other common boundary, are two-story semi-detached terraces occupying the full width of their allotment.

1. The issues, at the time of the appeal, were reduced to Issue 2 only which stated:

   “To whether the amenity impacts on the adjacent properties are acceptable in terms of sole access and visual bolt.
   Particulars.
   Control B3.1 of the Development Control Plan, solar access.”

2. The respondent’s evidence was heard onsite from the objectors, namely:

   Messrs T and J Buchanan of No. 150 Beattie Street,
   Ms K Munson of No. 138 Beattie Street,
   Mr C Curry and Ms E Murdoch of No. 136 Beattie Street,
   Ms F Heathfield of No. 151 Beattie Street and
   Mr J Murphy of No. 4 Rosebery Street. 

3. The applicant’s evidence came from:

   Mr S King, consultant architect, on shadow impacts.

1. On the first day of the hearing, it was noted there was anomalies between the architectural drawings and the shadow diagrams, and there were several conflicts between the engineering drawings and the architectural.  The applicant sought adjournment to co-ordinate the drawings, have a fresh shadow assessment done by Mr King, after slightly altering the proposal to reduce impacts on No.s 150, 138 and 136 Beattie Street, that were agreed as the only ones possibly affected by the s 96 changes.

1. On resumption, new plans were tendered in Exhibit J, with draft orders in Exhibit G that essentially replaced the approved drawings with Exhibit J.  The new plans were exhibited and fresh objections tendered in Exhibits 6 and 7.

1. Mr Curry gave further evidence, and Mr King gave evidence.  In summary, Mr Curry’s opinions, as is that of Mr Buchanan in the written objection, that the proposal does not comply with the current controls for floor space ratio, wall height and site set-back, so the additional height should not be allowed.  Some of the other changes are for similar reasons, not favoured, but the objectors, at least, realised that construction certificate drawings are issued for the original consent, and it will be built if the s 96 amendment is refused altogether.  Mr Curry added that the rear balconies of units 5 and 6 overlook his backyard, and that of No. 138, and will be 700 mm higher than the current approval, and give greater overlooking of their small backyards.

1. The applicant and respondent agreed that in a s 96 application, the issue of overshadowing should be assessed on merit between the construction certificate drawings and the Exhibit J plans.  The point of difference is that the respondent says any increased shadow is unacceptable.  The applicant says the increase in shadow is so marginal in difference of impact that the extra height should be approved along with the other changes.

1. What Exhibit J does is:

   1.     Unit No. 1 is set back an additional 2 m from Beattie Street.  The basement walls, accordingly, and the lift to apartment No. 1 is changed.

   2.     The ground floor to level of Unit No. 1 is lowered by 300 mm to apartment one.

   3.     Level one to level two, being the roof of Unit No. 1, is lowered by 300 mm.

   4.     The parapet to Unit No. 1 is lowered by 100 mm, and the parapet to the sandstone box fronting Beattie Street, is a line to reduce parapet height.

   5.     The roof overhand at level three of all units fronting Beattie Street, is reduced from 1500 mm to 1000 mm.

   6.     Level two parapet for apartments 2, 3, 4, 5, 6 and 8 is reduced by 100 mm in height.  The parapet height of the sandstone boxes fronting Beattie Street are unchanged.

   7.     Survey information for No. 150 Beattie Street is included on the plans.

1. Mr King gave oral evidence in re-assessment of his report in exhibits H and K.  He was confident the architectural plans in exhibit J are the ones used to project the shadow drawings.  Also in exhibit J, he observed that the shadows shown towards No. 136 and 138 are drawn as if falling on the neighbours being vacant land, when both No. 136 and 38 are built on and have fences between.  He discovered also that No. 138 has had a building extension at the rear, not shown on previous drawings, and the extensions and the fences have existing impacts on No. 136 so that the proposal has less impact than previously thought.

1. In the end his evidence is that there is no difference in impact of the amended s 96 plans and construction certificate approved plans in regard to mid-winter, that is June 21, solar access to the backyards of No. 136 and 138.  In the case of No. 136, this is due to the existing shadows of No. 138, and for No. 138, due to the construction certificate approved plans. 

1. At the equinox, which is not a control under the Council’s development control plan, the proposal starts to have an impact on No. 136 exceeding the shadows cast by No. 138 at 1.30pm in the afternoon. 

2. In regard to No. 150, the amendments have ensured its bedroom and living room windows receive the current requirement of two hours sun, and the movement of unit No. 1, 2 m further from the street, improves the streetscape relationship of No. 150 and the development.

1. The applicant says given the construction certificate approved plans dating from 1998, before the current Council development control plan controls, and before the Pafburn principles on solar access, the proposal must be regarded as having little relevance to them.  It was approved and will remain a much higher density development than the current controls allow.  The applicant noted also that in Pafburn the non-compliance in that case was in regard to a statute not a control.

1. In coming to a conclusion on this appeal, I can appreciate that the amended plans achieve a better streetscape relationship with No. 150 Beattie Street, and only a marginal reduction in the sunlight to its habitable rooms compared to the approved construction certificate plans, and actually improves solar access compared to the original s 96 plans in Exhibit B.

1. In regard to No.s 136 to 138 Beattie Street, their backyards being on the south side of their own buildings, receive precious little sun, especially in winter when it is most valued.

1. In regard to overlooking from the rear balconies of units 5 and 6, there must be a greater sensitivity to overlooking by reason of the balconies being 700 mm higher than currently approved, even though the separation distance to No. 136 is over 10 m, but it is only about 4 m separation from No. 138.

1. It seems to me that the approved plans are at a floor space ratio of about 1.37:1, when the current control is 0.7:1.  The side boundary setbacks are zero and 1.5 m, when the current minimum setback control requires more than that for the proposed wall heights.  And, the height of the building is about 11 m, when the current maximum is 6 m.  The proposal, when approved by Council, was in its determination placing considerable weight on the height, and its impact.  Increasing the height goes beyond what was intended, and increases impacts, particularly on No.s 138 and 136 in terms of overlooking, and the precious little sunlight that they currently receive, and will receive, once the proposal is built.

1. I accept the applicant’s submission that the current approved height has to go up by 90 mm to achieve the Building Code of Australia minimum of 2.4 m ceiling height on the second and third floor, but that should be the limit of the height increase in order to constrain the impacts on the neighbours.  The draft orders by the applicant in Exhibit G should be changed accordingly, otherwise the other amendments should be allowed.

1. Therefore, the Orders of the Court are:

   1.     Appeal upheld in part.

   2.     The s 96 application is approved and council’s Notice of Determination dated 14 December 2006 is amended by:

(a)   replacing the 8th sub-arrow point of item 1 condition 3 with the following:

Architectural plans prepared by Turner & Associates, as follows:

Title	Dwg No.	Rev	Date
1	Site/roof level plan	DA01	B	29/3/07
2	Basement floor level plan	DA02	C	29/3/07
3	Ground floor level plan	DA03	C	29/3/07
4	First floor level plan	DA04	C	29/3/07
5	Second floor level plan	DA05	D	29/3/07
6	North West elevation to Beattie Street	DA06	C	29/3/07
7	South East elevation (rear elevation)	DA07	C	29/3/07
8	South West elevation	DA08	B	29/3/07
9	Material Samples	DA50	A	13/04/06

(b)   replacing item 3A with the following:

The level for that part of the main building between grid lines 3-11 as shown on the architectural plans referred above are to be amended in accordance with attachment ‘A’ to these orders.

3.     Exhibits 8, G and J to be retained.

___________________

K G Hoffman
Commissioner of the Court

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