McDermott v Lane Cove Council

[2007] NSWLEC 47

Land and Environment Court

of New South Wales

CITATION:	McDermott v Lane Cove Council [2007] NSWLEC 47
PARTIES:	Applicant: Nicole McDermott Respondent: Lane Cove Council
FILE NUMBER(S):	10828 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- view impact; fitting in with adjoining local heritage items
DATES OF HEARING:	14/12/2006, 02/02/2007
DATE OF JUDGMENT:	7 February 2007
LEGAL REPRESENTATIVES:	Apoplicant: Mr G McKee, solicitor of McKees Solicitors Respondent: Mr S Griffith, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

7 February 2007

10828 of 2006 Nicole McDermott v Lane Cove Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Lane Cove Council (the council) of a development application to demolish the existing dwelling and construct a new two-storey dwelling and a swimming pool on lot 3 DP 408922, known as 83 William Edward Street, Longueville.

The site

2 The site is on the west side of William Edward Street, between Borambil and Cowper Streets. Its area is 950m2. A house now stands on it. It lies between Nos 81 and 85, two properties that are listed as local heritage items. The surrounding development is mainly single dwellings.

The proposal and its history

3 The applicant proposes to demolish the existing house on the site and to construct a new two-storey house with a swimming pool. The house is long and narrow, and designed in contemporary style, with vertically sliding screens. The roof is covered by grass.

4 The applicant lodged the application in March 2006. Following notification and the receipt of objections, the applicant amended the plans. Following re-notification, the council received six submissions. The applicant filed the appeal in September 2006.

Relevant planning instruments

5 The Lane Cove Local Environmental Plan 1987 (the LEP) zones the site 2(a2), which is a low-density residential zone. In addition the Lane Cove Residential Zone Development Control Plan (the DCP) applies.

The issues

6 The council submitted a Statement of issues containing five issues, with numerous sub-issues under each. The main issues that emerged during the hearing were:

· the view loss to No 81,

· consistency with the two adjoining heritage items, and

· the excessive length of the building

The objectors’ evidence

7 Mrs R Moss, who lives at 87 William Edward Street and who had complained about what she perceived as a proposed roof garden, said that, on being told that the flat roof was not trafficable, she was less concerned. However, she still thought a flat, grassed roof was out of character with the street. She was also concerned about overlooking from the pool deck.

8 Mr J Ferris, who lives at 81 William Edward Street adjoining the proposal, said that his main concern was the loss of view from his upstairs living room. A lesser concern was the overlooking of his property from the deck on top of the poolroom. I deal with Mr Ferris’ objection below.

9 Mr J Radcliffe, whose mother owns 85 William Edward Street, also adjoining the proposal, said that his concern was the loss of sunlight to the reading room, kitchen and dining room. He considered the proposal too bulky.

View loss to No 81

10 The applicant had erected height poles that enabled a reasonable assessment of the view loss to the upper floor living area of No 81. It was clear that the upper floor of the proposal would obstruct most of the water view. However, when the upper floor was moved 1.5m towards the east, the water view was restored.

11 On 16 November 2006 the owner of No 81, Mr Ferris wrote to the applicant’s solicitor, Mr G McKee that he would prefer the upper storey to be moved by 2m towards the east; however, he would accept 1.5m provided there were no obstructions to the view beyond that line. In fact an awning is proposed, extending 3m from the face of the upper storey towards the west. The awning would be within the view from No 81.

12 Since the function of the awning is to protect the west-facing glass of Bedroom 1 without recourse to a vertical blind that would also cut out the view, I am reluctant to require its removal. A compromise would be to move the upper floor 2m (rather than 1.5m) towards the east, thus reducing the extent of view disturbance by the awning and meeting Mr Ferris’ first preference for 2m. This would reduce the dimensions of Bedroom 1 from 5.8m x 4.9m to 5.3m x 4.9m, leaving still ample area for a bedroom. A consequence of the change would be that the width of the terrace outside Bedroom 1 would increase by 0.5m.

Consistency with adjoining heritage items

13 The applicant’s expert was Mr Robert Staas, while the council’s expert was Mr Mark Robinson, both heritage architects. Mr Robinson objected to the proposal’s architectural design because of its box-like appearance, which was alien to the heritage items on either side of it. He thought that it should have taken some design cues from its neighbours. He also wanted a 10.5m setback from the street instead of a 7.7m setback.

14 Mr Staas pointed out that the house was lower than its neighbours, that it was set back behind landscaping, and that the two heritage-listed houses on either side were different from each other, thus posing the problem of which one the proposal should fit in with.

15 Clause 18E of the LEP relates to development adjoining heritage items. It provides that, for such development, the council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item and on its setting.

16 I note that the council’s heritage adviser, Mr Bruce Dawbin, had no objection to the development on the basis that it had minimal impact on the heritage items to either side (see file note 19 April 2006). I do not understand Mr Robinson to be saying that the proposal impacts on the adjoining items adversely, other than by being different from them. I do not think that it is reasonable to require a contemporary building to imitate its neighbours, whether or not those neighbours are local heritage items. The important thing is that the new building does not dominate the heritage item or detract from its significance or that of its setting. If one insisted that the proposal “take design cues” from the neighbours, as Mr Robinson suggested, the question would arise which of the neighbours to take the design cues from.

17 As concerns the larger setback suggested by Mr Robinson, I do not see what purpose this would serve. There is no consistent setback in the street. The three properties Nos 81, 83 and 85 do not form a group within the street. The increased setback from the street would shorten the building, but not where it may be regarded as being too long, which is at the rear. I return to this issue below.

18 In my opinion, the heritage impact on Nos 81 and 85 is not a reason for refusal.

Is the proposal too long?

19 The site is long and narrow, a little narrower than its neighbours. Mr Robinson pointed out that the proposed building is more than 50m long and occupies those parts of the site that are traditionally rear yards rather than buildings. The applicant argues that the house is only about 35m long, the remaining parts of the structure being terrace, swimming pool and Games Room, which should not be regarded as parts of the house. The council suggests that the Games Room should be deleted and the pool surround lowered to natural ground level.

20 The applicant’s argument that the house ends at the rear façade of the ground floor loses force when one considers that the pool is 2m above natural ground and the Games Room is 2.5m above natural ground. It seems to me that, to overcome the criticism that this house covers areas of the site that are traditionally rear yards, either the Games Room should be deleted, or the pool and Games Room lowered to natural ground level. I have assumed that the applicant would prefer to lower the pool and Games Room to deleting the Games Room, and have therefore imposed the council’s suggested condition (within 0.1m) that the pool surround and Games Room roof be lowered to RL 36.5m.

Conclusions

21 This is a well-designed house for a long and narrow site. The council submitted that it should be refused because its contemporary design does not fit in with its neighbours on either side, both of which are items of local heritage. I do not think that refusal on this basis would be reasonable; however, I have accepted some of the council’s suggestions for reducing the proposal’s impact on views and its extension deep into the traditional rear yard zone of the site. To ensure protection of the northern neighbour’s views, the western façade of the upper floor should be moved towards the east by 0.5m. To meet Mr Robinson’s criticism that the house is too long, the level of the swimming pool and the adjoining Games Room should be lowered to natural ground level. With these amendments, the proposal is acceptable and may be approved.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing dwelling and construct a new two-storey dwelling and a swimming pool on lot 3 DP 408922, known as 83 William Edward Street, Longueville is determined by the grant of consent, subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 4 and B.

_____________________
Dr John Roseth
Senior Commissioner