Maher v Strathfield Municipal Council

[2008] NSWLEC 1445

Land and Environment Court

of New South Wales

CITATION:	Maher v Strathfield Municipal Council [2008] NSWLEC 1445
PARTIES:	APPLICANT Damian Maher RESPONDENT Strathfield Municipal Council
FILE NUMBER(S):	11339 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Application - Development Control Plan :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Strathfield Planning Scheme Ordinance 1969 Draft Strathfield Local Environmental Plan 2003
CASES CITED:	Zhang v Canterbury City Council(2001) 115 LGERA 373
DATES OF HEARING:	21 May 2008
EX TEMPORE JUDGMENT DATE:	21 May 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor Storey & Gough RESPONDENT Mr S Patterson, solicitor Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

21 May 2008

11339 of 2007 Damian Maher v Strathfield Municipal Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the granting of a development consent subject to conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at


1 COMMISSIONER : The block of Pemberton Street, Strathfield, immediately to the south of Arthur Street, is one with a range of dwellings of varying ages (from the comparatively new to a two-storey dwelling on the western side towards the southern end that appeared to be of almost Victorian era in age).

2 The architectural styles across this section of Pemberton Street might best be described as eclectic or varied and the standard of maintenance exhibited in some of the buildings also adds to the variety of appearance in the present streetscape. The buildings range from the comparatively modern with rendered finishes of varying lighter tones from grey through to off-white, together with more traditional monotone or varied-tone brick unrendered finishes. There was at least one mock-Tudor building in the street, as well, adding to the degree of variety.

3 The present consideration of what might be permitted to be constructed on 5 Pemberton Street, being the site which is the subject of this appeal, is governed, in the first instance, by the provisions of cl 41B of the Strathfield Planning Scheme Ordinance 1969 together with such consideration as I deem appropriate under the circumstances of the provisions of cl 17 of the Draft Strathfield Local Environmental Plan 2003.

4 Clause 41B(1) of the Planning Scheme Ordinance requires that a consent authority shall not grant consent to development unless the consent authority is satisfied that any proposed buildings will be compatible with any other development that is proposed or likely to be carried out in the vicinity – that is it is a test which is cast in the future tense.

5 The draft Local Environmental Plan requires that regard be had to the character and amenity of existing and likely future buildings on adjoining land. That term is broader in terms of the development to be contemplated (in that it takes regard of existing development) but it is geographically narrower in that it applies to adjoining land. Even taking the most generous interpretation of adjoining lands such as that dealt with by the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429), I do not consider that it is as wide as the vicinity – being the term used in the Planning Scheme Ordinance.

6 I do not think, however, in the present context, that anything in particular turns on that. The primary matters of contest arise out of the terms of the Strathfield Consolidated Development Control Plan 2005 and the extent to which the proposal does or does not comply with it in a number of respects. I visited the site this morning in company with the legal representatives of the parties and the Council officer instructing Mr Patterson, the Council’s solicitor.

7 I heard informal evidence from three residents to the west who were concerned about stormwater drainage issues. The applicant has agreed to conditions of consent which require the roof water from the property to be collected and discharged to the east into Pemberton Street and that the rear yard and other runoff water from the site will be collected in the rear and discharged through an existing Council stormwater pit and pipe located on a property to the west.

8 The Council accepts that such an arrangement will not lead to the overland transmission of water from the site to the properties to the west. The residents indicated that if that were applied they were satisfied with that understanding of the Council. Therefore, there are no other issues raised by lay objectors to which I need have regard.

9 The first matter that remains in contention, there having been significant agreement between the parties on a range of other matters between the time of the inspection and the hearing, relates to the question of the setback of the western element of the first floor – that is bedroom 1 of the proposal.

10 There are two provisions in the DCP that are called on by the Council in this regard. The first is a number of matters contained in 4.3.2 dealing with scale, massing and rhythm of the street and the second are contained in cl 11 of the DCP dealing with setbacks. There are three matters contained in 4.3.2. The first is that the scale, massing and bulk must complement the existing streetscape. There is the possibility that that requirement is inconsistent and incompatible with the provisions of cl 41B(a) of the Planning Scheme Ordinance but, given the overall conclusion I have reached on this point, I do not need to determine that specifically.

11 The second element of 4.3.2 has, as a necessary precondition to it being enlivened, that there is a dominant building rhythm in the street. I am satisfied from the walk of the block between Arthur Street and the street to the south, walking with the representatives of the parties on both sides of that block of Pemberton Street, that there is nothing that could be described as the dominant building rhythm of the street except to the extent that the aerial photograph tendered by the applicant shows a broad consistency as to the setback of dwellings to the street, there only being one inconsistent dwelling and that is the present dwelling on the proposed redevelopment site. I am therefore satisfied that that dwelling, which will be moved somewhat further forward than that which is presently on the site, will in fact then reflect the sole dominant building rhythm element in the street. There is nothing, I am satisfied, with respect to facades, roof form or anything else of the like that could be described as a dominant building rhythm in that portion of Pemberton Street.

12 With respect to the third element of 4.3.2, it requires that a dominant built form be determined and that dominant built form be a single-storey dwelling. Ms Strickland, who gave evidence on behalf of the Council, accepts that there is a small majority of dwellings in the street which are single-storey but that there is a near but lesser number of dwellings that are two-storey in the street. There is not sufficient difference in my view between those to conclude that single-storey is the dominant built form in the street. There is a sufficiently close relationship between the two for me to be satisfied that that provision of 4.3.2 is not called into play.

13 A consequence, of particular relevance, is that the requirement in 4.3.2.3 requiring a setback of the totality of any second-storey element of a building a minimum of 2 m from the front from the ground floor building line is not enlivened.

14 However there is a default position contained in the provisions of cl 11 of the DCP dealing with setbacks generally. I am satisfied that this applies for my consideration. My consideration must be informed by the context of consideration of DCPs set by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, namely that I am to use the provisions of the DCP as the focal or starting point for my consideration but that the provisions of the DCP are not absolute and if I am otherwise satisfied, after a genuine and appropriate consideration of issues on a general nature pursuant to s 79C of the Environmental Planning and Assessment Act 1979, I may depart from the provisions of the DCP if I consider it appropriate under the circumstances.

15 The planning context of setbacks is set in 11.1 and, relevantly, dealing with varied setbacks so that varied setbacks can be utilised to create articulation in the built form adding visual interest and variety in the streetscape. The relevant controls that are provided in 11.3.4 are ameliorative compared to the more prescriptive regime to which I earlier referred in 4.3.2 – in that the second storey setback is only required to be 2 m for at least two-thirds of the width of the proposed façade.

16 It is in that context that I turn to consideration of the detail of the proposal and the detail of that which is proposed for the redevelopment of the dwelling site immediately to the south, 7 Pemberton Street. That latter site, although being assessed under a different Development Control regime is nonetheless a dwelling which is likely to be approved but has not yet been approved and is a dwelling of two floors that has a degree of articulation to its upper level. I am satisfied that that, in the context of the provisions of 41B of the Planning Scheme Ordinance, is a critically relevant structure to which I should have regard as to the likely future nature of development in the vicinity.

17 The present proposal has, at its northern façade element, a continuation of the vertical face on the first floor of the level below. In the centre of the building there is a portico, the façade of which is set forward of all the other built elements and the front wall of the main part of the dwelling is set modestly back from that and indented in the overall line of the façade. To the south, at the upper level, there is a balcony to the second bedroom. There is, as a result of that, effectively, visually, a double articulation to the building along that façade.

18 However it is put on behalf of the Council that there ought to be an extra degree of articulation to relieve the otherwise flat element on the master bedroom, bedroom one. If that were to occur, it would be itself a departure from the provisions of 11.3.1.4 – in that such articulation would be less than two-thirds of the face of the building. I am satisfied, in light of the remainder of the articulation across the face, that that departure from the two-thirds provision is entirely acceptable and that the Council’s position on that is appropriate.

19 The Council suggests that I should apply the totality of the 2 m setback to that bedroom. The bedroom is presently proposed to be 6.64 m along its east-west access and a reduction to 4.6 m would, in my view, render it inappropriately small and necessitate a significant redesign of the remainder of that side of the upper level of the house if that were to be rectified.

20 However, I am satisfied, under the circumstances, that it is not necessary for there to be a 2 m degree of setback nor, however, do I accept that the position advocated by Mr Gough, solicitor for the applicant, that limiting it to bringing it back to the line of the front wall of the house behind the portico would be appropriate. I am satisfied that a modest increase in that, to bring the front wall of the house back to the line presently proposed of the eastern most of the two windows on the northern face of the first floor (being 1.2 m or thereabouts) would be appropriate and would bring it back slightly behind the wall at the rear of the portico. That would provide a significant stepping in then out through the line of the portico and then a modest step back in of some 230 mm to the face of the balcony on bedroom two. It would still leave a generously proportioned bedroom one.

21 That form of building, although not a direct mirror replica of the façade of the first floor of that which is proposed at 7 Pemberton, would be sufficiently similar in rhythm to be consistent and sympathetic with that and would in my view justify a departure from the provisions of 11.3.1.4 under the circumstances.

22 I am also satisfied, given that the applicant does not strongly resist the proposal that the agreed addition of eaves to the dwelling should be at 450 mm in width rather than 300 mm, this will also provide a degree of additional visual break both at the front of the building looking up to the eaves and to the side of the building looking along the side of the building. The combination of those eaves together with the degree of setback in my view provides sufficient interest and break when viewed from the streetscape.

23 There are two other remaining matters required to be dealt with. The first is submission by the Council that the height of the building should be reduced internally at the ground level whilst the ridge line remains the same in order to increase the slope of the roof and to ameliorate appearance from the street. The length of the roof will be increased modestly as a consequence of the addition of eaves and the pitch will be the subject of perhaps some minor alteration in that regard.

24 I am satisfied that those eaves additions in both the front and side perspective of the dwelling, coupled with the reduction in height of the top of the portico which has been agreed to between the parties so that the top of the portico will come back to the height of the gutter of the main body of the dwelling, renders it unnecessary to alter the internal heights of the building.

25 I am satisfied, if the eaves and the articulation are incorporated, that that will satisfy questions arising out of the scale, massing and rhythm of the street – particularly having regard to what is likely to be the future nature of development in the area reflected not merely immediately to the south at 7 Pemberton but also in several other dwellings, one of a grey nature with a large glass element at its front, somewhat further to the south.

26 The final matter that requires being determined relates to the external finish of the building. The Council proposes, relying on the provisions of 4.3.4 materials, colours, roof forms and architectural detailing of the DCP, that there should be monotone face brick walls to the building. However, a note to that provision, provision 6 of that clause of the DCP notes that the Council (or the Court, in this case) will also consider the use of other building materials provided that they are compatible with and sympathetic to the streetscape.

27 The Council’s position is that there should be a predominantly brick monotone element and that if there is to be render it should be render to the portico alone. The applicant’s position is that there should be permitted to be render throughout at the colour proposed (being a colour to which the Council objects on the basis that it is too light) but if there should be any brick element it should be confined to the portico. Whilst a precise count was not undertaken of the rendered buildings in this portion of Pemberton Street, I am satisfied that there were a significant number of them and that, particularly, several of them were newer in construction and more likely to represent future or newer elements likely to be added to the streetscape, that being matters that I should have regard to dominantly pursuant to cl 41B of the Planning Scheme Ordinance and being part of my consideration taking into account the new LEP clause.

28 I am satisfied, on balance, that it would not be appropriate or at least not be necessary to require there be any non-rendered element to that façade of the building. I do not consider it appropriate that I take exception to the proposed colour and require that to be altered as I am satisfied that that is generally consistent with the light colours of other render located elsewhere in this section of Pemberton Street. Whilst the mix of render and brick proposed for 7 Pemberton is consistent with the position advocated by the Council, there are sufficient other elements in the street so that I am not prepared to conclude that that will necessarily be the dominant form likely to take place in the future.

29 The consequence of that is that I have determined the four outstanding issues. It is agreed between the parties that, on the determination of those issues, the applicant will lodge revised plans to reflect the decision and that revised settled conditions of consent will be provided to the Court to enable the matter to be finalised.

Tim Moore
Commissioner of the Court