Ius Pty Limited v Leichhardt Municipal Council

[2003] NSWLEC 370

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Land and Environment Court

of New South Wales

CITATION:	Ius Pty Limited v Leichhardt Municipal Council [2003] NSWLEC 370
PARTIES:	APPLICANT Ius Pty Limited RESPONDENT Leichhardt Municipal Council .
FILE NUMBER(S):	10789 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- SEPP 1 objection re Floor Space Ratio Bulk and scale of development Obstruction of views .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Leichhardt Local Environment Plan 2000 Leichhardt Development Control Plan 2000 .
CASES CITED:	Australand Holdings Limited v Parramatta City Council 2003 NSWLEC 229 ; Rockdale Municipal Council v Rizzi [1991] NSWLEC 56 ; Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46; Zhang v Canterbury City Council (2001) 115 LGERA 373; .
DATES OF HEARING:	24 November 2003
EX TEMPORE JUDGMENT DATE :	11/25/2003
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister INSTRUCTED BY Acuiti Legal RESPONDENT Mr P Jackson, solicitor Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10789 of 2003

Moore C

25 November 2003

Ius Pty Ltd

Applicant
v

Leichhardt Municipal Council

Respondent

Judgment

1 The matter that is before the Court is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act, 1979 (“the Act”) concerning a proposal for the construction of two townhouses (with underground parking for two vehicles each) with two stories above – with three bedrooms on the second level of each proposed dwelling – together with a Torrens Title subdivision with appropriate mutual easements for access and support.

2 The site is a double fronted site of approximately 454 m2. When subdivided, the site would meet the relevant numerical allotment sizes provided for in the Leichhardt Local Environment Plan 2000 (“the LEP”) which is the relevant local environment plan. Itis development permissible with consent. The other relevant planning instrument is the Leichhardt Development Control Plan 2000 (“the DCP”). During the course of the hearing, a copy of proposed amendments to the LEP were tendered but it is the agreement of the parties that those proposed amendments do not materially impact on the issues in the present appeal.

3 Although the present appeal was commenced as an appeal against a deemed refusal, the matter was determined by actual refusal by the council on 14 October 2003.

4 The site is at 58 Mackenzie Street, Leichhardt, and is Lot 1 in Deposited Plan 455806.

5 It is located in an area known as the Piperston Distinctive Neighbourhood which is discussed in the DCP from page A74. The relevant portions of the general description of the neighbourhood are, firstly reading from at about point 6 on page A74:

The residential building stock in Piperston is generally of low scale in density. The average street comprises detached or semi-detached cottages or bungalows, interspersed by two storey terraces. While it is difficult to identify several architectural forms in the area, there is a profusion of bungalow and cottage style developments, terraced houses, three-storey flat buildings as well as random groupings of workers cottages.

6 Then, continuing from the second column on page A74 at about point 9:

Some are characterised by a lack of street and front yard trees, irregular building forms including unsympathetic alterations and additions and industrial land uses.

7 The Court undertook a view in company with the parties prior to the commencement of the formal proceedings which assisted in identifying and crystallising the issues. This saved the parties considerable time and money in the carriage of the proceedings.

8 During the course of the view, the parties walked around the perimeter of a block comprising Annesley Street, Balmain Road, Moore Street and Mackenzie Street and also walked most of the portion of Annesley Street to the east of Mackenzie Street. An opportunistic view was also taken from the balcony of an objector, Mr Woodhill, at 56 Annesley Street.

9 It would be fair to conclude, from a general consideration of the immediate neighbourhood taken during the course of the view, that, at its best, the neighbourhood could be described as being eclectic and undistinguished with a wide and miscellaneous range of ages and forms amongst the buildings.

10 The issues that fall to the Court to determine are, on my assessment, three.

11 The first is the requirement to deal formally with an objection pursuant to State Environmental Planning Policy No. 1 as there is an exceedance of the development standard in the LEP relating to the floor space ratio of the proposed dwellings.

12 Secondly, there is the issue of the fit of the proposal into its neighbourhood having particular regard to its bulk and scale in the streetscape given the controls in the the DCP particularly relating to building envelopes.

13 The third is the issue of view loss from Nos. 56 and 56A Annesley Street, a matter which was raised by the objectors in the public submission process and therefore requires to be dealt with pursuant to s 79(c) of the Act. I note this was a matter, although discussed in the council officer’s report, which was not pursued in the council’s Statement of Issues, nor in the evidence given by its town planning witness, Mr Harding.

14 I turn firstly to the State Environmental Planning Policy No. 1 objection.

15 The floor space ratio agreed between the parties is 0.52:1 against a requirement set out in cl 19(2) of the Local Environment Plan for a floor space ratio within the Leichhardt area of 0.50:1. It is agreed between the parties that the consequence of this is that there will be an exceedance [of approximately 5 m2 per dwelling] of this standard. I note, in this regard, it is submitted on behalf of the applicant that approximately 40 m2 of the underground parking area is counted towards the floor space ratio and thus contributes to this exceedance.

16 The tests that are required to be addressed by the Court in considering whether an SEPP 1 objection should be sustained are summarised by Lloyd J in Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46, where his Honour posed five questions that need to be addressed as arising out of SEPP 1.

17 The first question is:

“Is the planning control in question a development standard?”

18 It is agreed in the statements of evidence of the two consultant town planners together with the original SEPP 1 objection and the council officer’s assessment report that the planning control is a standard and it is the standard that is contained in cl 19(2) of the Local Environment Plan relating to floor space ratios.

19 The second question that has to be asked is:

“What is the underlying object or purpose of the standard?”

20 Although the council officer’s report prepared by Ms Wing cites a number of general provisions of the LEP as being the underlying object or purpose, there appears to be broad agreement, in addition, between her report and the evidence of Mr Goodyer and Mr Harding that the appropriate and relevant objective arises out of cl 17(c) of the Local Environment Plan which reads:

“To provide development standards to ensure that the density and landscape areas of new housing reflect the existing residential development of the locality. New housing should complement and be compatible with the style, orientation and pattern of surrounding buildings, works and landscaped areas.”

21 The third question relates as posed by his Honour is:

“Is compliance with development standard consistent with the aims of the policy?” [Then some other provisions not relevant here relating to the objects of the Act.]

22 I am satisfied that the objective that is appropriate to be considered is that stated in cl 3, the aims and objectives and that is that the policy is to provide flexibility in the application of planning controls. I am satisfied that a strict adherence to the standard in cl 19(2) would not provide flexibility and, therefore, that compliance with the development standard would not be consistent with the aim of the policy.

23 The fourth question posed by his Honour is:

“Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?”

24 I note that the SEPP 1 objection that was lodged with the council and, as put to the Court, argued that the compliance with the standard was both unreasonable and unnecessary. The tests that are contained in the policy are in the disjunctive rather than the conjunctive. I propose to consider first whether it would be unnecessary to comply with the standard.

25 The nature of the exceedance would be capable of being rectified by the removal of an appropriately small area of the floor space from the garage areas on the site according to the submissions made on behalf of the applicant. An examination of the plans shows no reason to consider why this might not be the case. As a consequence, any such removal would not have any impact on the appearance of the bulk and scale. I am satisfied that the test should be answered that it would be unnecessary to reduce the floor space ratio to a complying level as a consequence of the nature of such change to achieve compliance. I therefore do not consider it necessary to determine whether or not it would be unreasonable to require compliance.

26 The next and final question is whether the objection is well founded.

27 This is discussed at considerable length by Ms Wing in her original report to the council. I note, at p 15 of the council’s bundle [being p 8 of the report to the Building and Development Committee of the council at the top of the page], that Ms Wing noted that the applicant had submitted that it would not be possible to readily discern the difference between a complying and non-complying building when viewed from the street or from neighbouring properties. From consideration of the plans and my assessment of the proposal from the view, I am satisfied that that statement made on behalf of the applicant [as reflected in Ms Wing’s report] is an accurate one. Therefore, as a consequence, the fifth question posed by his Honour should be answered in the affirmative. As a result, I conclude that the SEPP 1 objection should be sustained.

28 The sustaining of the SEPP 1 objection brings the Court to consideration of the substantive issues that were placed in contention between the parties.

29 The council raised, in broad terms, two sets of controls arising out of the DCP. I note that, in commencing to deal with the issues arising out of the DCP, in conformity with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, I must have regard to and consider the terms of the DCP but that it is not determinative in itself and that I may and ought have regard to broader issues such as those that arise out of general considerations in s 79(c) of the Act.

30 The first related to a consideration of whether the building complied with the provisions of the DCP relating to a concept described as a building location zone and dealt with at p B7 of the DCP.

31 With respect to the building location zone, a diagram on p B7 sets out how one would have regard to defining a building location zone in the context of the adjacent developments for a mid-street development, as is the present case.

32 The relevant portion of the DCP says, at p B7 at approximately point 4, new development or an extension to an existing dwelling is to be located within the building location zone as would then be derived.

33 As I understand the case of the council, it is effectively that that provision should be construed as requiring the applicant or the designer to build to the building location zone. I am satisfied that an ordinary English interpretation of that provision simply requires the footprint of the building to be located within the building location zone.

34 It is not disputed that the present proposal lies within the building location zone that would be derived from a consideration of the provisions on B7 and I am satisfied there is no breach of the building location zone.

35 The more complex issue arises from a consideration of the building envelope and how the building will be considered in its context in the street scape and the immediate neighbourhood. The relevant provisions of the DCP appear on p B8 of the DCP.

36 In this regard, I note that there are proposed to be constructed two dwellings that would subsequently be on separate titles.

37 I am, therefore, of the view that it is appropriate to consider the compliance of the proposal, not merely collectively but also separately as there are two dwellings proposed. There are three elements from the building envelope guidelines set out in the DCP that are relevant in these proceedings. The first is a contested definitional provision that appears at the foot of the left hand column that appears at the foot of the left hand column on page B8 and reads:

“The building envelope defines the maximum potential volume of a development above ground level. It applies to the whole area of a building defined by external walls. It includes covered areas such as verandahs and balconies but does not include open decks and paved areas.”

38 There are a number of measurement provisions arising out of that to which I will turn later but also invoked is the concept noted, at about point 2 of the right hand column on page B8, that wall height is measured from existing ground level at the front of the building.

39 During the course of proceedings, Ms Duggan for the applicant drew my attention to a decision of Cowdroy J in Australand Holdings Limited v Parramatta City Council 2003 NSWLEC 229. In that case, his Honour was construing an expression “natural ground level” rather than existing ground level or existing natural ground level. At para 18 of his Honour’s decision, he noted that the importation of the word ‘existing’ into such a phrase gives a meaning to be taken from a decision of Bignold J in Rockdale Municipal Council v Rizzi [1991] NSWLEC 56 leading one to the conclusion that the ground level relevantly would be that which is in its natural state as at the date of development even though that might not be the original natural landform.

40 Cowdroy J drew a distinction between the concept of natural ground level and existing natural ground level, drawing attention to the fact that, in Australand, there was no temporal requirement for the existing ground level in his consideration of the issues.

41 If it were necessary for me to determine how I would measure the wall height from existing ground level, I would prefer the approach taken by Bignold J in Rizzi but I am satisfied that it is not necessary for the purposes of this case for me to make a determination on that matter.

42 The third element which is contained in the DCP appears at the foot of p B8 immediately above a diagram and reads:

Minor architectural elements such as chimneys, dormer windows, gables and sub-gables can penetrate the envelope.

43 I consider that it would be appropriate to construe that as meaning that architectural elements such as chimneys, dormer windows, gables and sub-gables can penetrate the envelope to a minor extent. That is consistent with the marking of a dormer window roof that appears at the top of the right hand column on p B9.

44 In this instance, the applicant contends that, although the requirement for defining the launching point for the building envelope is normally the front wall of the buildings, the architectural device that is proposed by the architect of an intervening wall to the front of the courtyard together with its architectural treatment for townhouse 1, would make it appropriate to measure the building envelope by having regard to the height above ground level of that feature.

45 A similar but somewhat different feature is applied to townhouse 2, but the same argument is put with respect to it.

46 If such an approach is rejected, Mr Goodyer made the concession, in cross-examination, that, if strictly applied to a measurement from the front wall, there would be a considerable non-compliance with the controls in the DCP.

47 The question that therefore needs to be considered, with respect of each of the townhouses, is whether, under the circumstances, I should adhere strictly to the provisions of the DCP or whether it would be appropriate to adopt the position of the applicant and use the front walls as the measurement point.

48 The difference between the town planners giving evidence on behalf of the council and the applicant is stark on this position.

49 Mr Harding, for the council, says that there is effectively a complete disconnection to the streetscape by the use of the artificial device of the front wall whereas Mr Goodyer, for the applicant, on the other hand, says that it does provide an appropriate linkage and that the absence of a roof behind is not readily able to be discerned and ought be disregarded leading to consideration of a building envelope derived from these walls.

50 I should indicate that I have found the provisions of the perspectives by the architect in this case to be particularly helpful to the Court and I would request Ms Duggan to convey that sentiment to him on my behalf.

51 The architect’s perspectives make it clear that what he is proposing is not a treatment to the front courtyard wall that mimics the streetscape and thus might be at risk of becoming a caricature or satire.

52 He has, however, by a treatment that proposes a free-standing wall with a pair of louvred shutters at approximately the position where a central window would be located together with a small pergola toward the street from that wall provided a stylistic feature which is to a considerable extent in tune with, but as I noted, not mimicking or caricaturing the nature of the structures immediately adjacent to the south and broadly sympathetic with the treatment at the frontages of other single storey terraces in the vicinity.

53 I am satisfied that, giving consideration to the perspectives contained in perspective view No. 8, the treatment at the front of townhouse 1 is sufficiently consistent with the elements in the general streetscape in the neighbourhood [particularly given its eclectic and diverse nature] that the minor degree of discontinuity that would be able to be seen when travelling from the north to the south along Mackenzie Street as shown in perspective view from location 3, ought not prevent me considering that it would be appropriate to permit in these circumstances a departure from the strict compliance that would otherwise be required for the measurement of the building envelope for townhouse No. 1.

54 I am therefore satisfied that townhouse No. 1 would satisfy the building envelope guidelines.

55 A different position arises, however, with respect to townhouse 2.

56 The consequences of the provision of a driveway and ramp to the underground parking area and the fact that the underground parking is some 800 mm or so above ground at its highest [in contrast to the design maximum proposed at p B13 of the DCP for a maximum of 500 mm above ground level – neither the words natural or existing appearing in that instance] are that the wall that is proposed to be the front courtyard wall of townhouse 2 is both somewhat higher than the present ground level [without need to interpret from whence it is measured] together with it being significantly set back further from the street.

57 During the course of giving his evidence, Mr Goodyer was asked by the Court to mark, on the perspective from location 3, the degrees of exceedance of the building envelope for the gable ends of townhouse 2, even if the proposition advanced by the applicant is to the point of measurement were to accepted.

58 He marked that portion of the exhibit with two lines, one the upper red line being that which is the exceedance if the more permissive interpretation were to be taken of the ground level and the lower one in green as to where the more prescriptive interpretation of ground level would apply.

59 As I have indicated, I do not think that it is necessary to make a final determination as to which measurement would be appropriate in support of the applicant’s proposal.

60 It is appropriate, at this point, to deal with the proposal for underground parking. a series of photographs were tendered on behalf of the applicant, two of which show underground parking at 11 Milton Street and 49 Coleridge Street [both of which are in the Piperston locality] as demonstrating that the underground parking is possibly appropriate in architectural form within the neighbourhood although there was no evidence as to the planning regime that applied at the time that either of them were approved.

61 I do not consider, concerning the proposal for underground parking, that anything turns on the fact that both those developments are multiple occupancies as opposed to the two townhouses in this case.

62 I am satisfied, from the photographic evidence, that underground parking in appropriate circumstances may be appropriate or desirable and thus may be acceptable. It is certainly not a basis for refusing the present application.

63 However, what can be derived from the examination of photograph 13 at 11 Milton Street particularly is that there is a range of treatments available above the entrance to underground parking where, in that instance, there is a single storey element immediately above the carpark entrance. Whether or not it would comply with the building envelope guidelines is not a matter for concern in this case as there was no evidence as to the planning regime that applied at the time of that development.

64 However, even taking the most permissive position with respect to townhouse 2 [that is the higher of the two levels for measuring the building envelope and measuring it from the wall of the courtyard], I am not satisfied that the exceedance of the gables above that building envelope would be minor.

65 During the course of her submissions, Ms Duggan indicated that the applicant would be prepared to consent to a redesign of the roof so that it were a hip-roof that would otherwise comply.

66 It was Mr Goodyer’s evidence in this regard that applying a hip-roof to townhouse 2 but without applying it to townhouse 1, would be entirely inappropriate.

67 If I were attracted to the imposition of a hip-roof on townhouse 2, it would necessarily, in light of my acceptance of Mr Goodyer’s evidence on that point, also require a hip-roof on townhouse No. 1. I consider that would warrant a significant amendment to the plans. No such amended plans were not before the Court and I would not be minded to accept such a significant amendment by condition as an appropriate way of dealing with the matter.

68 I conclude that the exceedance of the gable roofs of townhouse 2 are not an exceedance such that they would constitute a minor architectural element penetrating the envelope – even giving the applicant the benefit of measuring from the courtyard wall. I do not consider it necessary to deal with the issue of whether it would be appropriate to measure from the Courtyard wall or not, in this instance, given the conclusion that I have come to on the most beneficial construction for the applicant.

69 In order to deal with the issues completely, I turn to the issue of the views from 56 and 56A Annesley Street. Although the outlook from 56 Annesley Street was inspected and not that from 56A, it is reasonable to infer from the design of the two adjoining dwellings [that were obviously constructed as part of the same package] that the outlooks would be broadly identical. The DCP provides, at pp B53 and B54, a number of guidelines for dealing with access to views. They provide relevantly at p B53 in the right hand column at about point 2:

“In particular consideration should be given to available views of landmarks, eg Sydney Harbour Bridge, Anzac Bridge, city skyline, local landmarks such as church spires or significant chimney stacks and significant vistas where views are currently enjoyed from existing buildings or public places, new development should minimise obstruction of those views”.

70 At p B54, the requirement is that:

“The applicant must satisfy the council of appropriate view sharing has been achieved by the design of the proposal. Developments that result in monopolisation of views should be avoided”.

71 There was no doubt that there is a significant and expansive view of the Harbour Bridge and the Anzac Bridge from 56 and 56A Annesley Street. The evidence of Mr Goodyer, on this point, was that there was a very broad view including other city skyline views from that location, that the view was not from a living area nor was it from the main bedroom.

72 It was obvious from the view of this dwelling that the size of the balcony from which the view was enjoyed was not so large that it would ever be likely to be used on a significantly frequent basis for casual living.

73 It is the ordinary practice of the Court, when faced with a provision in a DCP such as that at pp B53 and B54, to have regard as to the areas from which the views are to be enjoyed.

74 I am satisfied that, as a consequence of my acceptance of the evidence of Mr Goodyer, which was borne out at the view, the enjoyment of that aspect is not from a living area nor is it from the principal bedroom of the dwelling and that, although it might be regarded as being an unneighbourly act to seek to develop as the applicant proposes, it is not such a breach of the DCP under all the circumstances as to warrant refusal of the application.

75 However, given the conclusion that I have come to with respect to the building envelope relating to townhouse 2, the orders of the Court are:

1. The appeal is dismissed;
2. Development Application for construction of two townhouses with underground parking and subdivision into two Torrens title allotments at 58 Mackenzie St, Leichhardt, being Lot 1 DP 455806 is refused; and
3. The exhibits, except Exhibits B, D, E, F and H, are returned.

Tim Moore

Commissioner of the Court