Lily Hassarati v Marrickville Council

[2004] NSWLEC 55

Land and Environment Court

of New South Wales

CITATION:

Lily Hassarati v Marrickville Council [2004] NSWLEC 55

PARTIES:

APPLICANT
Lily Hassarati

RESPONDENT
Marrickville Council

FILE NUMBER(S):

11022 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Refusal to amend an existing two storey house to have a third storey - streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act
Urban Housing Development Control Plan
Marrickville Local Environmental Plan
Development Control Plan No. 35

CASES CITED:

DATES OF HEARING:

16/01/2004

EX TEMPORE
JUDGMENT DATE :

01/16/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Goldsmith, town planner

RESPONDENT
Mr G Christmas

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11022 of 2003 Hoffman C 16 January 2004 Lily Hassarati
Applicant
v Marrickville Council
Respondent Judgment

1. This was a class 1 appeal No. 11022 of 2003 between Lily Hassarati and Marrickville Council in regard to the refusal of a s 96 application to amend an existing consent for a two storey house and permit it to have a third storey. The site was a vacant lot at No. 77 Palace Street, Petersham. Number 75 was a single storey Federation semi detached house with a tiled roof, No. 79 was a two storey Victorian freestanding terrace with a pitched slate roof.

2. Most of the houses in Palace Street were two storey Victorian style of the pre 1900 era and this gave a particular character to the street. The proposal was for a three storey modern style building with an asymmetric street facade that stepped back at each floor level but at the third storey would project about 2 m above the sloping parapet wall of No. 79’s slate roof. The flat roof at No. 77, the proposal, would be a little below the ridge of No. 79 in overall height. The issues in the case were:

1. Whether the proposed modification of the development would result in a built form which is compatible with the existing streetscape of Palace Street, particulars s B3 of Pt 2 of the Council’s Urban Housing Development Control Plan, Vol 1 and the Draft Marrickville Local Environmental Plan 2001 amendment on the 25, and s D of Pt 2 of the DCP.

2. Whether the proposed modification of the development is acceptable in terms of the height of the elevations and the visual impact of those elevations when viewed from numbers 75 and 79 Palace Street, particulars control C2, bullet points 3 and 5 of s B(1) of Pt 2 of the DCP and control C4, bullet points 4 and 7 of s B(2) of Pt 2 of the DCP.

3 . The Court heard the respondent’s evidence from:

• Mr J Stoddart, objector and resident of No. 75 Palace Street,
• Ms J Johnson, objector and resident of No. 43 Palace Street, and
• Mr P Failes, architect and town planner for the council.

4 . There were in evidence written objections from other residents of Palace Street including :

• Ms M Gollan and
• Mr H Light of No. 79.
5 . The applicant’s evidence was heard from:

• Mr M George, consultant town planner.


6 . At the site view it was noted by the parties and the objectors that there were no survey levels on the plans except for a longitudinal section 04 that showed the footpath at the front of the site as RL0 and the heights of each floor level and the roof above.

7 . The overall height of the proposal to its front parapet wall was 9.35 m. It was agreed there was about a 220 mm cross fall in the land down from No. 79 to No. 75 and a rise towards the back of the site of about a metre. This meant the proposal would be excavated at the rear. Mr Failes was concerned that longitudinal section 04 that showed a rough outline of No. 79 against the proposal was not accurate in the portrayal of No. 79 and he produced drawing in Exhibit 10 that the parties agreed showed No. 79’s northern wall more accurately.

8 . There was evidence of a draft LEP, amendment No. 25, which had originally intended to declare the locality as a conservation area but this was abandoned by council in December 2003 although other areas in Marrickville were being proceeded with. The Court has concluded that in regard to this particular application the draft LEP has very little weight.

9 . Part of the applicant’s case was that the council had approved the three storey building in 2000 and it was while that draft LEP was still in process along with the applicable Development Control Plan, No. 35 , and it was by a s 96 amendment that the three storey approval was made into two storeys.

10 . The new owners of the site sought in effect to restore the original consent.

11 . There had been since 2000 the adoption of Development Control Plan No. 35 in regard to the design of urban housing, and it applied to the proposal along with the Marrickville Local Environmental Plan 2001 in which the site was zoned Residential 2(b).

12 . The lot was narrow, about 4.9 m wide, and had an area of 177 m2. Under the council’s statutes and controls there were no numeric floor space ratio or height controls on lots less than 200 m2. The determination of acceptability or not was on qualitative grounds and the parties agreed the major concern was streetscape issues and the relationship of the design to No. 79.

13 . The council’s controls did not favour slavish copying of pre 1900 Victorian styles and in fact sought designs reflecting current architecture with provisos that it should be sympathetic to its neighbours and the streetscape. The applicant said the proposal was acceptable in that regard.

14 . The respondent said the approved two storey design was acceptable but the three storey one was not. The main reason for unacceptability was the projection of the third storey above the pitched roof at No. 79 at the street front facade creating a jarring form with vertical steps in the street façade.

15 . Most buildings in the street had a receding steeply pitched roof at the upper level that did not emphasise the full height of the building at the street facade. There were two parapet roofed Victorian buildings nearby but they were two storey.

16 . The comparative drawing in Exhibit 10 was important in the Court’s consideration as it did show the parapet of the existing approved two storey house on No. 77 was about equal to the parapet north wall of the first floor verandah of No. 79 where it occurred at the very front of the street facade.

17 . The consideration of the proportions of the adjoining house at No. 79 was demonstrated by the termination of the two storey building at that point. It convinced the Court of the correctness of the council’s decision that the two storey house would fit into the streetscape as a modern design without disturbing the high quality that already existed, whereas the three storey would not.

18 . The parties and the Court agree there is an existing high quality of architecture and streetscape in this part of Palace Street. The projection of the third storey of the proposal above the street front north wall of No. 79 would make it dominant especially when viewed from the north along the street, but also when viewed from the south. This particular three storey design in this case would be incongruous and not comply with the elements of Development Control Plan 35 referred to in issue one, although some alternative design may be acceptable.

19 . The orders of the Court are:
1. The appeal is dismissed.
2. The exhibits be returned to the parties except Exhibits A, 2, 9 and 10.



__________________
K G Hoffman
Commissioner of the Court
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