Massy-Greene v Leichhardt Council
[2012] NSWLEC 1202
•27 July 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Massy-Greene v Leichhardt Council [2012] NSWLEC 1202 Hearing dates: 5 July 2012 Decision date: 27 July 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed.
2. Development application no. D/2011/485 for the construction of two semi-detached dwellings behind the façade of an existing warehouse building at 5-7 Manning Street, Rozelle, is refused consent.
3. The exhibits, other than 1, A, B, E, F and L, are returned.
Catchwords: DEVELOPMENT APPLICATION: retention of warehouse façade; construction of semi-detached dwellings; FSR; minimum landscaped area; internal amenity; impact on neighbouring trees. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: Ms Sophie Massy-Greene (Applicant)
Leichhardt Council (Respondent)Representation: Counsel
Mr Andrew Pickles (Barrister) (Applicant)
Ms Julie Walsh (Solicitor) (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Pikes Lawyers (Respondent)
File Number(s): 10193 of 2012
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/2011/485 (the application) by Leichhardt Council (the Council) for the construction of two semi-detached dwellings behind the façade of an existing warehouse building, at 5-7 Manning Road, Rozelle (the site).
The appeal was subject to mandatory conciliation and arbitration on 5 July 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the adjacent area and neighbouring properties and heard from two local residents, one objecting to the proposal and one in support of the proposal.
As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(ii).
Issues
Council's contentions in the matter are:
- That the SEPP 1 objections to the minimum landscaped area and FSR development standards are not well founded;
- That the proposal unreasonably impacts on the amenity of the occupants and of its neighbours in terms of bulk and scale;
- That the proposal fails to meet the suite of controls and the variation criteria for building envelope and siting; and
- The proximity of the proposal to the structural root zones of mature trees on adjoining properties will significantly affect the stability and health of these trees.
The site and its context
The site is located on the north-eastern side of Manning Street, between Darling Street and Moodie Street. The site has a frontage of 9.145 m and an area of 257.2 m2. The site contains a warehouse building, consisting of two levels with various contemporary mezzanine levels, timber framed with external walls of face brick and corrugated metal and a saw tooth roof profile. The footprint of the warehouse building occupies the majority of the site, with narrow setbacks for a section of both side boundaries.
No 3 Manning Street, to the south-east of the site is a two storey cottage and carport on a double lot. No 9 Manning Street, to north-west of the site, is a two storey weatherboard clad cottage. The street contains a range of dwellings. The site falls from the south-east towards the north-west.
The Rozelle Hospital site (former Callan Hospital and grounds) is on the opposite side of Manning Street further down the street, to the west of the site.
The proposal
The proposal is to demolish the existing warehouse building, retaining only the face brick two storey façade fronting Manning Street and a short section of the side returns and to construct two semi-detached dwellings, within the envelope of the former warehouse building and using, where possible, salvaged materials from the demolition and new materials and detailing evocative of the former warehouse building. The proposed ground floor level, which steps up towards the rear of the site, is lower than the existing ground level. Dwelling A is to occupy the front half of the site and Dwelling B the rear half of the site, with a shared access pathway along the north-western side boundary adjacent to Dwelling A. The proposal includes retaining the existing garage opening in the Manning Street façade and providing a car-stacker for off street parking for two cars. Both dwellings are three storeys, with bedrooms, bathrooms and small courtyard on the ground floor, living areas and study on the first floor and a living room and external terrace on the second floor. Dwelling A also has a plunge pool in the external terrace.
The planning framework
The site is located within the Residential zone pursuant to Leichhardt Local Environmental Plan 2000 (LEP 2000) and the proposal is permissible with consent.
The relevant general objectives of LEP 2000 at clause 13, include:
(2) The general objective for the built and natural environment and amenity is to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area to:
(a) protect and enhance the area's natural features, character and appearance, and
(b) protect, conserve and enhance the area's heritage, and
(c) provide an environment meeting the principles of good urban design, and
(d) maintain amenity and contribute to a sense of place and community, and
(e) provide an environment which is visually stimulating, while being easy to manage and maintain,
The site is not a heritage item, nor is it within a heritage conservation area. The parties agree that the heritage conservation objectives of LEP 2000 are relevant to the proposal, as they do not relate only to heritage conservation areas, but to the Leichhardt municipality as whole. The relevant heritage conservation objectives, include, at clause 15 of LEP 2000:
(b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines,
(c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items,
The site is within the vicinity of a State significant heritage item, listed in the State Heritage Register (SHR) and Schedule 2 of LEP 2000, Callan Park Conservation Area and Buildings (SHR listing number 00818). The site is within the vicinity of a local heritage item, listed in Schedule 2 of LEP 2000, 757 Darling Street, Rozelle. Consequently, the site is subject to the provisions of clause 16(7) of LEP 2000, 'Development in the vicinity of heritage items', which states,
Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.
A maximum FSR for the site of 0.5:1 applies under clause 19(2) of LEP 2000. A minimum landscaped area of 40% of the site area, of which 25% must be soft landscaped area, is required under clause 19(3) of LEP 2000. The parties agree that the objectives of the Plan in relation to housing are the appropriate objectives for the development standards. The relevant objectives, at clause 17 of LEP 2000, are:
(a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character,
(b) to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents
(d) to provide a diverse range of housing in terms of size, type, form, layout, location, affordability and adaptability to accommodate the varied needs of the community, including persons with special needs,
The site is subject to the provisions of Leichhardt Development Control Plan 2000 (DCP 2000). DCP 2000 is divided into four parts. Part A deals with general information, including neighbourhood precinct descriptions and controls and Part B provides controls for residential development.
Part A of DCP 2000 divides the municipality into character precincts. The site is located within the Callan Park Distinctive Neighbourhood (A10.5.3). Each precinct includes descriptions of Landform, Existing Character, Desired Future Character and Neighbourhood Controls. The relevant controls for the Callan Park Distinctive Neighbourhood include:
Maintain the character of the area by ensuring new development is complementary in terms of its architectural style, building form and materials.
Building envelope - 3.6m building wall height applies to the neighbourhood.
Part B of DCP 2000, at B1.2 Design Element 2 'Building Form, Envelope and Siting' includes guidelines for the Building Location Zone (BLZ). Where it is proposed to build outside the BLZ, the onus is upon the applicant to justify that the proposed building footprint is appropriate. Issues which must be addressed in justifying a footprint outside the BLZ, include:
- amenity to adjacent properties (ie sunlight, privacy, views)
- location and retention of existing significant vegetation;
- compliance with applicable statutory controls, including floor space ratio and minimum landscaped area of 40% of the site;
- the existing streetscape and character and scale of surrounding development; and
- the adequacy of the size, dimensions, privacy and solar access of private open space for outdoor recreation and landscaping.
B3.1 Design Element 17, 'Solar access, residential amenity and energy efficiency' includes guidelines to optimise solar access to habitable rooms and private open space.
B3.2 Design Element 18, 'Private open space' includes guidelines for the design of private open space, which include that it be well integrated with living areas.
B3.3 Design Element 19, 'Visual privacy' includes guidelines for protecting the visual privacy of adjoining dwellings by minimising direct overlooking of principal living areas and private open space.
Public submissions
One resident objector, from the opposite side of Manning Street, provided evidence on site. Her concerns relate only to the potential for disruption to neighbours during the construction of the proposal.
The neighbour to the south-east of the site provided evidence during the view of the site from his property. He is supportive of the proposal because he and his family enjoy the privacy provided by the existing warehouse building along their north-western boundary and would prefer to maintain a two storey elevation for the length of the side elevation rather than have an adjoining backyard. He said that the applicant and her architect had consulted extensively with him during the design phase.
Three letters objecting to the proposal were tendered by Council; two from neighbours on the opposite side of Manning Street in relation to the potential for noise disturbance from the car stacker and construction of the proposal; and one from the neighbour to the rear of the site in relation to their concerns regarding the appearance of the proposal directly adjacent to their rear boundary, privacy and noise.
Letters in support of the proposal were tendered by the applicant, from the adjoining neighbour to the south-east and the two neighbours to the north-west of the site.
Expert evidence
Expert evidence was provided on behalf of the applicant by Mr Andrew Darroch (planning) and Mr Glen Holden (arboriculture).
Expert evidence was provided on behalf of the Council by Ms Deborah Laidlaw (planning) and Ms Melanie Howden (arboriculture).
Arboriculture
The arborists agreed on-site to amending the proposal to raise the finished floor level (FFL) of the ground floor bedrooms of Dwelling B from RL30.0 to RL30.65 to ensure that the works in the vicinity of the root zone of the two Tallowwood trees (Trees 1 and 2 in the joint statement, Exhibit 10) located at 9 Manning Street would have a 100mm margin of soil retained above the root that has been exposed by an investigative trench dug along the north-eastern end of the shared boundary with no. 9 Manning Street. The amended plans were tendered as Exhibit B.
Following the amendment to the FFL of Dwelling B, there were no remaining contentions between the parties in regard to the existing trees in the vicinity of the site.
Does the proposal satisfy the objectives of the development standards?
The planning experts agree that the FSR of the proposal is 1.77:1.
According to Mr Darroch, the applicant initially sought to rely on the provisions of clause 19(5) of LEP 2000, which deals with building conversion and adaptation of non-residential buildings in the Residential Zone to be used for a residential use. The parties subsequently agreed that the proposal did not meet the requirement of clause 19(5) to substantially retain the existing building and the variations to the development standards were more appropriately considered under the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1). The applicant then submitted SEPP 1 objections to the FSR and landscape area development standards.
The experts disagree whether clause 23(6) of LEP 2000, regarding the commercial use of non-residential buildings in the Residential zone applies to the proposal.
The contention between the parties is described by Mr Darroch as a difference in philosophical approach to the assessment of the proposal. Mr Darroch maintains that the applicant could have retained the existing structure, however decided that it was a better architectural outcome to demolish the majority of the existing fabric and use contemporary construction methods to mimic the original building. In his opinion, the proposal fulfils the heritage conservation objectives of clause 15 of LEP 2000, by retaining the front façade and side returns of the existing building and rebuilding the warehouse building behind the front façade. According to Mr Darroch, because the proposal reconstructs the existing envelope of the warehouse building, which pre-dates LEP 2000, the proposal should effectively be exempt from complying with the relevant development standards.
In Ms Laidlaw's opinion, the proposal seeks to demolish the majority of the existing structure and rely on the envelope established by the existing building, without reference to the development standards applicable to the development.
Findings
I agree with the Council that neither clause 19(5), nor 23(6) of LEP 2000 are relevant to the assessment of this proposal. Clauses 19(5)(a) and 23(6)(b) both require that the building be substantially retained for exemptions to be granted under the provisions of both clauses. The parties agree that the building is to be substantially demolished, with only the street façade and side returns to be retained. Furthermore, clause 23(6) of LEP 2000 is concerned with a commercial use, in a non-residential building located in a residential zone and this proposal is for a residential use, so it is not relevant in this matter.
SEPP 1 objection to the FSR development standard
There was agreement that the proposed development breaches the development control in LEP 2000 for FSR and the applicant submitted a SEPP 1 objection to the development standard.
If the SEPP 1 objection to the development standard is not well founded, then the application must be refused. The most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as found in the judgment of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe), set out at par 42. The Court must be satisfied of three matters before it can uphold a SEPP 1 objection and then consider the merits of the application. The matters are:
- The Court must be satisfied that the objection is well founded (clause 7 of SEPP 1);
- The Court must be of the opinion that granting consent to the development application is consistent with the aims and objectives of the SEPP 1 policy, as set out in clause 3 (clause 7 of SEPP 1). These are to provide flexibility in the application of planning controls, operating by virtue of development standards, in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. The objects in s 5 (a) (i) and (ii) are to encourage:
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and co-ordination of the orderly and economic use and development of land,
- The Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection. These are:
(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument.
The SEPP 1 objection for FSR addresses the objectives of LEP 2000 for housing and the matters in clause 19(2) of LEP 2000. The SEPP 1 objection states that the proposal copies the form and materials of the existing building and is therefore compatible with its surrounds, as the neighbouring properties have been developed in response to the existing warehouse building. The SEPP 1 objection refers to the adaptive re-use of the warehouse building and the contribution the existing building makes to the character of the local area.
The relevant objective for the FSR control, at clause 17 of LEP 2000, is:
(a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character
The relevant objective for the FSR development standards is to limit the size, scale and site coverage of a building, to ensure that the density and landscaped area are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to achieve the desired future character for the Callan Park Distinctive Neighbourhood.
Having regard to the objective, the proposal is a substantial departure from the general pattern of surrounding buildings and while the Council agrees that the retention of the front façade and side returns of the warehouse building does afford the applicant some flexibility in complying with the numerical control for FSR, the proposal seeks to maximise the development not only within the existing envelope established by the warehouse building, but also beyond the existing envelope by reducing the ground floor level below the existing level and natural ground level in order to provide three levels, including roof terraces.
The SEPP 1 objection incorrectly refers to the adaptive re-use of the warehouse building. Adaptation is defined by the Burra Charter (Australia ICOMOS Charter for the Conservation of Places of Cultural Significance) as the modifying of a place to suit proposed compatible uses. The substantial demolition of a structure and construction of a new structure does not constitute adaptation or adaptive re-use. That the proposed use requires the substantial demolition of the existing structure strongly suggests that it is not a compatible use.
When tested against the relevant objectives of LEP 2000, I am not satisfied that breach of the FSR development standards is consistent with the aims of SEPP 1. It follows that compliance with the FSR development standard is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded.
SEPP 1 objection to the landscape area development standard
There was agreement that the proposed development breaches the development control in LEP 2000 for landscaped area and the applicant submitted a SEPP 1 objection to the development standard.
As set out in paragraph 35, the Court must be satisfied compliance with the development standard is unreasonable or unnecessary, because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, before it can uphold a SEPP 1 objection.
The SEPP 1 objection to the landscape area development control was prepared by Mr Darroch. The SEPP 1 objection addresses the objectives of LEP 2000 for housing and the matters in clause 19(3) of LEP 2000. The SEPP 1 objection states that the private open space for each of the dwellings is in the form of roof terraces and the proposal is unlikely to have any negative impact on the neighbouring properties.
The relevant objective for the landscape area control, at clause 17 of LEP 2000, is:
(b) to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents
The purpose of the relevant objective for minimum landscape area is to limit the site coverage of a building and to ensure that the landscaped area is a usable space, suitable for substantial tree planting.
Having regard to the relevant objective, the proposal does not provide a landscaped area of a suitable size and location for the use and enjoyment of residents and the roof terrace is not suitable for substantial tree planting.
When tested against the relevant objectives of LEP 2000, I am not satisfied that breach of the landscape area development standards is consistent with the aims of SEPP 1. It follows that compliance with the minimum landscape area development standards is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded.
Conclusion
I agree with Ms Laidlaw that the proposal seeks to demolish the majority of the existing structure and rely on the envelope established by the existing building, without reference to the development standards applicable to the development. This is inappropriate because the incentives to retain existing buildings and adapt them for residential uses in clause 19(5) of LEP 2000 require, at clause 19(5)(a), that the building be 'substantially retained, which means the building must be structurally capable of conversion without the need for the replacement of most of the structure'. If the proposed new use requires the demolition of the majority of the fabric of the warehouse building, then it follows that the proposal must have regard to the objectives of the development standards.
Given the above findings, it is not necessary to deal with the other contentions.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development application no. D/2011/485 for the construction of two semi-detached dwellings behind the façade of an existing warehouse building at 5-7 Manning Street, Rozelle, is refused consent.
3. The exhibits, other than exhibits 1, A, B, E, F and L, are returned.
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Susan O'Neill
Commissioner of the Court
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Decision last updated: 27 July 2012
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