McAuliffe v Leichhardt Municipal Council

[2004] NSWLEC 723

Land and Environment Court

of New South Wales

CITATION:

McAuliffe v Leichhardt Municipal Council [2004] NSWLEC 723

PARTIES:

APPLICANTS
T J McAuliffe & Dr D W Elliott

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

11044 of 2004

CORAM:

Nott C

KEY ISSUES:

Development Application :- Modification sought to conditions of council's consent - overshadowing of adjoining property - streetscape appearance

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96

CASES CITED:

DATES OF HEARING:

3 and 21 December 2004

DATE OF JUDGMENT:

12/21/2004

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie

RESPONDENT
Ms A Sowden, solicitor employed by Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

21 December 2004

11044 of 2004: T J McAuliffe & Dr D W Elliott v Leichhardt Municipal Council

JUDGMENT

1 This is an appeal under s 96 of the Environmental Planning and Assessment Act 1979 in respect of a development consent dated 17 December 2003, which approved alterations and additions to an existing two-storey free-standing terrace house at 12 Turner Street, Balmain, on the south-western corner of Cardwell Street.

2 The applicants sought to have the consent modified by deleting the following two conditions:

4(a) Reduce the eave height of the first floor addition by no less than 500 mm (maximum wall height of southern-western wall RL 46.21 and maximum roof ridge RL 47.32). The angle of the skillion (over bedroom one) is required to be maintained at 7.5 degrees.

4(d) The pattern of the proposed cast iron railing to front balcony is required to match the pattern of the existing cast iron railing at No. 14 Turner Street.

3 The hearing commenced on the site. The documentary material that was before the council was also tendered before me; that material included a report by Mr S Barwick, a town planner engaged by the council, and there were statements from the applicants’ architects. At a preceding call-over the parties had agreed that there be no additional expert evidence. Although there were no additional expert reports prepared for the hearing, it was agreed that I could hear orally from the applicants’ architect Mr W McPhee, and Mr Barwick also gave some short oral evidence. I also considered the written objections from the neighbours concerning the appearance of the proposed development and heard at some length from the adjoining owner of 14 Turner Street, Mrs Sherwood.

4 On the evidence, I find that the approved proposed additions would cause loss of sunlight to the eat-in kitchen of No. 14 compared with the present situation. There would also be a significant loss of sunlight to the two rear bedrooms at the upper level of No. 14 compared with the existing situation, even if condition 4(a) was not deleted. The very rear bedroom at No. 14 also has rear-facing windows which will not be affected by the proposed additions, only its windows on the north-eastern side.

5 The central bedroom at No. 14 (immediately adjoining the rear bedroom) has windows on the north-eastern side only, and this is where the impact of the proposed addition will be greatest, compared with the present situation with the lower rear extension of the terrace at No. 12 – this rear extension would be demolished in carrying out the approved development.

6 On one view it might be thought that it would not have been appropriate for the council to have granted the consent dated 17 December 2003 for the proposed additions having regard to the overshadowing and setback provisions of council’s Development Control Plan 2000. But that consent has been validly granted, and the Court on its own motion cannot vary the consent.

7 However, even though the applicants’ proposed modification involving the deletion of condition 4(a) would only cause a relatively small increase in overshadowing beyond that which the council-approved development would cause, it seems to me that the council-approved development (with its condition 4(a)) is already at the upper limit of acceptability, and no further adverse impact should be caused to No. 14, which would be the case if the applicants’ condition 4(a) were to be deleted and if no other changes were made to the original plans.

8 After I indicated to the parties the likely outcome of the applicants’ appeal, the applicants sought an adjournment to provide an amended plan lowering the roof over the proposed bedroom 1 as seen from No. 14.

9 At the reconvened hearing today, amended plans (exhibit G) were tendered which achieve the same outcome for No. 14 as the council’s condition 4(a) would achieve (that is, less overshadowing and slightly less bulk for No.14). This is because the upper eave on the south-western side is lowered – and the 12.5 degree pitch does not affect overshadowing. So if the exhibit G plans are substituted for the approved plans, condition 4(a) can be now be deleted, subject to considering the impact on Cardwell Street.

10 The height of the roof on the Cardwell Street elevation will be no higher than what was originally proposed by the applicants. I am of the opinion that it is not necessary to lower this roof at the street elevation by 500 mm, because (although it is still a high roof) the roof of the front portion of the terrace at No. 12 Turner Street is more dominant, and a Jacaranda tree, located between the Cardwell Street boundary of the subject site and the proposed bedroom, will screen part of the proposed addition. The small increase in the height of the highlight windows of the proposed bedroom (with no change to the eave of the roof facing Cardwell Street) is, according to the evidence of Mr McPhee, acceptable, having regard to streetscape and heritage considerations. It is important that the roof of the connecting element to the proposed bedroom is lower than the bedroom addition and lower than the upper shoulder of the existing terrace.

11 During the hearing, the wording of the modification of condition 4(e) was agreed by the parties.

12 According the orders of the Court are:

1. The appeal is allowed.

2. The development consent granted by the council on 17 December 2003 (DA 03/155) is modified as follows:

(1) In condition 1(a), delete “revision G dated 12 September 2003” and insert instead ”revision H dated 7 December 2004”.

(2) Delete condition 4(a).

(3) Delete condition 4(d) and insert instead:

“4(d) The pattern of the proposed cast-iron railing to the front balcony is to be detailed to the satisfaction of the council before the issue of a construction certificate.”

3. The exhibits, other than exhibits 1, 2 and G, may be returned.

4. No order as to costs.

________________
A J Nott
Commissioner of the Court