Lane v Inner West Council

[2017] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane v Inner West Council [2017] NSWLEC 1257
Hearing dates:	25 May 2017
Date of orders:	30 May 2017
Decision date:	30 May 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. D/2016/561 for alterations and additions to an existing cottage, including a first floor addition, at 6 Ann Street, Balmain, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing cottage which is contributory to the Balmain Conservation Area; site coverage; impact on the heritage significance of the conservation area; amenity impact on adjoining neighbour.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Temara Lane (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr V. Conomos solicitor (Applicant) Mr M. Bonanno solicitor (Respondent)   Solicitors: Conomos Legal (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/22379

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2016/561 for alterations and additions to an existing cottage, including a first floor addition (the proposal) at 6 Ann Street, Balmain (the site) by Inner West Council (the Council).

2. The appeal was subject to mandatory conciliation on 25 May 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated and a hearing held forthwith pursuant to s 34AA(2)(b)(i) of the LEC Acct .

3. Leave was granted by the Court at the commencement of the hearing for the applicant to rely on an amended proposal, revision L (exhibit A).

4. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

5. The Council’s contentions can be summarised as:

• The proposal is an over development of the small site as the site coverage exceeds 60% of the site, breaching the development standard and the applicant’s request for a variation of the development standard is not well founded.

• The proposal has an unacceptable impact on the heritage significance of the Balmain Conservation Area (Balmain CA).

• The proposal has an unacceptable impact on the amenity of the adjoining dwelling at 4 Ann Street.

6. A number of contentions were addressed, to Council’s satisfaction, by amendments made to the proposal as a result of the joint conferencing of the experts and incorporated in the plans identified as revision L (exhibit A). The parties agreed that the proposal complies with the floor space ratio development standard for the site of 0.7:1 and the landscaped area requirement of at least 15% of the site area and that the parking space layout and dimensions are acceptable.

The site and its context

7. The site is on the northern corner of Ann Street and Gladstone Street, Balmain. The site has an area of 123.3sqm. The site contains an existing single storey cottage with the front portion constructed in sandstone masonry, later additions to the rear of the front two rooms and a concrete tiled hipped roof over.

The proposal

8. The proposal is to retain the front two rooms of the original cottage and part of the hipped roof form of the roof, including the form of the roof facing both Ann Street and Gladstone Street and to demolish the later additions to the rear of the cottage. The proposal includes a new on-site car space accessed from Gladstone Street and a new bedroom and two new bathrooms on the ground floor and a kitchen dining and living area on the upper floor with a terrace on the south-eastern corner of the site.

Planning framework

9. The site is zoned R1 General Residential pursuant to Leichhardt Local Environment Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the R1 zone are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

10. The site is located within the Balmain Heritage Conservation Area (Balmain HCA) and the proposal is therefore subject to the provisions of cl 5.10 of LEP 2013. Sub-clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the Balmain HCA.

11. Clause 4.3A of LEP 2013 Landscaped areas for residential accommodation in Zone R1 is in the following terms:

(1) The objectives of this clause are as follows:

(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b) to maintain and encourage a landscaped corridor between adjoining properties,

(c) to ensure that development promotes the desired future character of the neighbourhood,

(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e) to control site density,

(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

(2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential.

(3) Development consent must not be granted to development to which this clause applies unless:

(a) the development includes landscaped area that comprises at least:

(i) where the lot size is equal to or less than 235 square metres—15% of the site area, or

(ii) where the lot size is greater than 235 square metres—20% of the site area, and

(b) the site coverage does not exceed 60% of the site area.

(4) For the purposes of subclause (3):

(a) the site area is to be calculated under clause 4.5 (3), and

(b) any area that:

(i) has a length or a width of less than 1 metre, or

(ii) is greater than 500mm above ground level (existing),

is not to be included in calculating the proportion of landscaped area, and

(c) any deck or balcony or the like (whether enclosed or unenclosed) is not to be included in calculating the site coverage if:

(i) it is 2.4 metres or more above ground level (existing), as measured from the underside of the structure and the area below the structure is able to be landscaped or used for recreational purposes, or

(ii) the finished floor level is 500mm or less above ground level (existing).

12. Site coverage is defined in LEP 2013 as follows:

site coverage means the proportion of a site area covered by buildings. However, the following are not included for the purpose of calculating site coverage:

(a) any basement,

(b) any part of an awning that is outside the outer walls of a building and that adjoins the street frontage or other site boundary,

(c) any eaves,

(d) unenclosed balconies, decks, pergolas and the like.

13. Clause 4.6 Exceptions to development standards is in the following terms:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

14. Leichhardt Development Control Plan 2013 (DCP 2013) includes the following relevant objectives for alterations and additions at C1.3:

a. complements the scale, form and materials of the streetscape including wall height and roof form;

b. where an alteration or addition is visible from the public domain it should appear as a sympathetic addition to the existing building;

c. makes a positive contribution to the desired future character of the streetscape and any heritage values associated with it;

d. is compatible with neighbourhood character, including prevailing site layout;

e. protects existing residential amenity, including the retention of adequate private open space and ensuring adequate sunlight, natural ventilation and privacy to the existing dwelling and surrounding dwellings;

f. maintains views and glimpses from the public domain to natural and built elements that contribute to local character and sense of place;

g. reasonably protects views obtained from surrounding development and promotes view sharing;

h. retains existing fabric wherever possible and maintains and repairs, where necessary, rather than replaces the fabric.

15. Additions at first floor are to ensure that the addition does not dominate, but is subordinate, to the existing dwelling, at C12(c).

16. DCP 2013 includes the following relevant objectives for heritage conservation areas at C1.4:

a. does not represent an unsympathetic alteration or addition to a building;

b. encourages the protection, restoration, continued use and viability of buildings for their original purpose;

c. encourages the removal of unsympathetic elements;

d. is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter (Refer to: conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting;

f. maintains the visual unity of groups of buildings, in particular semi-detached and attached terraces;

g. makes an appropriate visual and physical distinction between the existing building and new parts of the building;

h. protects and enhances views of the existing building from the public domain; and

i. new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter.

17. DCP 2013 includes the following objectives for corner sites, at C1.5:

a. respects the visually prominent role of corner sites;

b. is compatible with the adjoining buildings; and

c. clearly delineates between old and new buildings.

18. The site is located within the Balmain Village Sub Area and the desired future character for this precinct is described in Section C2.2.2.1(b) of DCP 2013.

19. DCP 2013 includes objectives and controls for the ‘building location zone’ (BLZ) being the part of the site where it can reasonably be expected that a building can be located, at C3.2. In determining whether to permit a variation to the general pattern of development within the street, the onus is on the applicant to show that the amenity of adjacent properties is protected; the proposed development will be compatible with the existing streetscape and the desired future character and scale of surrounding development; that the proposal is compatible in terms of size, dimensions, privacy and solar access of private open space; that retention of vegetation and opportunities for new significant vegetation is maximised; and the height of development has been kept to a minimum, at C6.

Public submissions

20. Three resident objectors provided evidence on-site and the Court in the company of the parties viewed the site from the rear courtyard of the adjoining neighbour to the north. The objections to the proposal can be summarised as follows:

• The site is in a heritage area and the form of the existing worker’s cottage should not be changed;

• The proposal will be visible from the courtyard and living rooms of the adjoining neighbour to the north and will impact on the amenity of the northern neighbour;

• The proposal will interrupt district views from the dwellings across the street on the western side of Ann Street;

• The bulk and scale of the proposal is unacceptable.

Expert evidence

21. The applicant relied on the expert evidence of Mr Andrew Wilson (planning) and Mr Stephen Davies (heritage). The Council relied on the expert evidence of Ms Kerry Gordon (planning) and Mr Robert Moore (heritage).

Consideration

Contravention of the Landscaped areas for residential accommodation in Zone R1 development standard in LEP 2013

22. In order for development consent to be granted for a development that contravenes a development standard in LEP 2013, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2013) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2013) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2013).

23. The development standard in cl 4.3A includes two components. The first is that 15% of the site area, for a site less than 235sqm which includes the site with an area of 123.3sqm, is landscaped area. The parties agreed that the proposal complies with this component of the development standard.

24. The second component of the development standard is that the site coverage does not exceed 60% of the site area. The proposal does not comply with this component of the development standard and the planning experts did not agree on the calculation of the site coverage.

25. According to Mr Wilson the site coverage of the proposal is 64% and according to Ms Gordon, it is 72%. The experts agreed that the site coverage of the existing cottage is greater than 60%. The difference between the experts on the site coverage of the proposal is whether or not the first floor deck is included in the building footprint for the purpose of calculating the site coverage.

26. I prefer Mr Wilson’s interpretation of the definition of site coverage and therefore I accept his calculation of the proposed site coverage as 64%.

27. According to the definition in LEP 2013 for ‘site coverage’, it is determined as the proportion of the site covered by buildings, excluding eaves and any part of an awning that is outside the outer walls of a building (adjoining a site boundary). The first floor deck, on the south-eastern corner of the site and roof over, adjoins the southern and eastern boundaries. The first floor deck is unenclosed and covered by a roof, which can be characterised as an awning, outside the outer walls of the building. The outer wall of the building on the first floor includes the south-east facing sliding doors that open onto the deck and the roof over the deck is outside of the outer wall.

28. The definition of site coverage in LEP 2013 is further qualified for the purpose of the development standard by sub-cl 4.3A(4)(c). The deck, whether enclosed or unenclosed, is not to be included in calculating the site area if it meets both limbs of sub-cl 4.3A(4)(c)(i); that is the underside of the structure must be greater than 2.4m above existing ground level; and the area below the structure must be able to be landscaped or used for recreational purposes. The deck meets both limbs of sub-cl 4.3A(4)(c)(i) and the area of the deck is therefore not to be included in the site coverage calculation. It is uncontroversial that the underside of the deck structure is more than 2.4m above the existing ground level. The proposal need only satisfy one of the alternatives of the second limb of (i), either that is able to be landscaped or able to be used for recreational purposes. I am satisfied that the area below the structure is able to be used for recreational purposes. The occupants of the dwelling will be able to park their car on the street and use the area of the car space for recreational purposes, when it suits them. This is a common practice in higher density inner city areas. The surface finish of the area beneath the deck is therefore irrelevant.

29. According to Ms Gordon, the first floor terrace is included in site coverage because it is roofed and the decking is over the car space, which is not a landscaped area. I do appreciate Ms Gordon’s logic in her version of the calculation; however, it is not consistent with the definition of site coverage and sub-cl 4.3A(4)(c)(i) of LEP 2013.

30. The relevant objectives for Landscaped areas for residential accommodation in Zone R1, at sub-cl 4.3A(1) of LEP 2013, are to provide landscaped areas suitable for substantial tree planting and the use and enjoyment of the residents, to maintain and encourage a landscaped corridor between properties, to ensure that the proposal promotes the desired future character of the neighbourhood and to encourage ESD by maximising the opportunity for absorption of surface drainage.

31. The applicant’s written requests for the contravention of the development standard in LEP 2013 justifies the numerical non-compliance with the site coverage component of the development standard as follows:

• The proposal increases the landscaped area and embellishes the planting on site when compared to the existing development and the proposal has slightly less site coverage than the existing building;

• The contravention of the site coverage component of the development standard amounts to 4.62sqm of unbuilt upon that is not provided by the proposal;

• The contravention of the proposal does not result in significant additional amenity impacts;

• The proposed massing of the first floor addition to the rear of the site reinforces the character of the existing dwelling and its contribution to the character of the streetscape and the Balmain HCA;

• The proposal substantially improves the internal amenity of the dwelling and provides private open space with solar access in the form of a balcony deck on the first floor.

32. I have considered the applicant’s written request under cl 4.6 of LEP 2013 and I am satisfied that the written request has adequately addressed the matters required to be demonstrated and that compliance with the maximum 60% site coverage component of the development standard in cl 4.3A of LEP 2013 is unnecessary in the circumstances of the appeal and that there are sufficient environmental planning grounds to justify contravening the development standard.

32. The exceedance of the maximum site coverage requirement is minor. The constraints of this small site, including an existing rear setback of 1.15m, require a bespoke and clever design solution to achieve a small dwelling that is consistent with contemporary expectations and retains the original fabric and form of the cottage as legible within the Balmain CA. A proposal consistent with the maximum site coverage would not necessarily result in a better design outcome in my view.

Impact of the proposal on the heritage significance of the Balmain HCA

34. The heritage experts are in complete disagreement on the acceptability of the form of the first floor addition and its impact on the contribution made by the existing cottage to the heritage significance of the Balmain CA. According to Mr Moore, the proposal is an uncharacteristic form within the CA and it will dominate the character of the existing cottage, such that the proposal has become all about the addition. According to Mr Davies, the form of the first floor addition is of a size, scale and form that permits an understanding of the original form of the cottage, is appropriately contemporary and consistent with other additions within the Balmain CA. Mr Davies notes that the proposal includes the removal of unsympathetic elements.

35. Mr Moore’s concern about the roof cladding material is addressed by the agreement of the heritage experts on a condition of consent regarding a material with a traditional corrugated iron appearance to be used to replace the existing concrete tiles.

36. I am persuaded by Mr Davies opinion that the changes to the form of the modest single storey cottage are acceptable and I am satisfied that the form and scale of the proposed first floor addition is not unsympathetic to the original cottage or the contribution it makes to the heritage significance of the Balmain CA. The proposal is clearly a contemporary addition and it makes an appropriate visual and physical distinction between the existing cottage and the new addition, it preserves the integrity of the original and is compatible with the setting and its location within the Balmain CA in terms of its scale, form, roof form and materials.

Impact of the proposal on the northern neighbour

37. The planning experts disagreed on the impact of the proposal on the amenity of the neighbour to the north of the site at 4 Ann Street. The neighbour has a small contained courtyard at the rear of the dwelling, directly adjacent to the shared boundary. There is an existing high wall on the site, adjacent to the shared boundary, which is to be retained in the proposal.

38. The changes made to the original proposal in the amended proposal, following the joint conferencing of the experts, including the inclusion of a 900mm setback from the northern boundary and stepping the northern façade of the proposal back from the shared boundary, have successfully ameliorated the impacts of the bulk and scale of the first floor addition on the northern neighbour. I accept that parts of the form of the addition will be visible from the neighbours living areas and the courtyard, however, there are no privacy impacts from the addition and importantly, the proposal will not unreasonably overshadow the neighbouring private open space as it is on the northern side of the addition.

39. I accept that the significant constraints of this small site, including the existing configuration of the cottage on the site and the requirement of maintaining the legibility of the original cottage within the Balmain CA, means any first floor addition has to be located at the rear of the site. In considering the acceptability of the form and scale of the first floor addition, I have given weight to the compliance of the proposal with the FSR development standard. The proposed first floor addition is proportionate to the cottage and will significantly improve the amenity of the existing dwelling. I do not accept the Council’s view that the improvement of the amenity of the dwelling necessarily comes at a price of decreasing the amenity of the neighbour, nor that the car space should be deleted in order to locate the living area on the ground floor.

Conclusion

40. For the reasons set out in this judgment, I am satisfied that the proposal is a thoughtful and rigorous design that has competently responded to the significant constraints and opportunities of this site and its context, and that it will provide good internal amenity to the future occupants while not unreasonably impacting on the amenity of its neighbours.

Orders

41. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. D/2016/561 for alterations and additions to an existing cottage, including a first floor addition, at 6 Ann Street, Balmain, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

22379.17 O'Neill (C) (375 KB, pdf)

**********

Decision last updated: 30 May 2017