Melocco and Moore Architects v Leichhardt Municipal Council - [2005] NSWLEC 587

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Melocco and Moore Architects v Leichhardt Municipal Council [2005] NSWLEC 587

PARTIES:
APPLICANT
Melocco and Moore Architects
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):
10320 of 2005

CORAM:
Bly C

KEY ISSUES:
Development Application :- Alterations and additions to existing dwelling - building location zone - heritage significance - conservation area

LEGISLATION CITED:
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000
State Environmental Planning Policy No. 1. - Development Standards
State Environmental Planning Policy No. 55 - Remediation of Land

DATES OF HEARING: 23/08/05, 13/09/05 and 15/09/05

DATE OF JUDGMENT:

10/26/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Whealy, solicitor
SOLICITORS
Gadens Lawyers
RESPONDENT
Mr G Green,
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 October 2005
10320 of 2005 Melocco and Moore Architects v

Leichhardt Municipal Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No. D/2004/482, which is for alterations and additions to the existing dwelling at 11 Simmons Street, East Balmain. The dwelling is known as "Rock Lodge". More particularly the proposal involves: the partial demolition of more recent extensions to the building; a new two car carport and access off Simmons Street, a new swimming pool; alterations to an existing boat shed; and a new elongated single-storey pavilion style extension ("the pavilion extension") to the rear of the dwelling overlooking the harbour.

2 The site is situated on the eastern side of Simmons Street in close proximity to the Simmons Point Reserve. It is rectangular in shape and has an area of 690 sq m. It falls approximately 10 m from Simmons Street towards the harbour. There is a large mature lemon scented gum tree on the site that is to be retained.

3 The locality is predominantly developed with two-storey dwelling houses although there is some commercial development nearby. Adjoining the site to the south at 7-9 Simmons Street is a large two-storey building comprising a semi-detached pair of dwellings. To the north at 13 Simmons Street is a two-storey detached dwelling. Like Rock Lodge these properties have a water frontage and expansive harbour views.

Statutory provisions

4 The site is situated in the Residential Zone under Leichhardt Local Environmental Plan 2000 ("the LEP") and in this zone the proposal is permissible with development consent.

5 Clause 7(3) of the LEP provides that consent must not be granted unless the relevant objectives of the plan are taken into account and that the proposal is consistent with those objectives. The general objectives of the LEP are contained in cl 13 and relevantly deal with the protection of natural features, character, appearance and heritage.

6 The relevant heritage and conservation objectives are contained in cl 15 and are as follows:

7 The site is also located within the Balmain Conservation Area ("the conservation area") and is located within the vicinity of Simmons Reserve, a listed heritage item under the LEP. Hence cl 16(7) and (8) of the LEP are applicable as follows:

8 The site is also subject to a Foreshore Building Line ("the building line") of 41 m when measured from the Simmons Street frontage. The purpose of the building line is to protect the scenic qualities of the locality when viewed from the water. The majority of the proposal complies with the building line with the exception of a stair. In this context and because the foreshore building line is a development standard, an objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") has been provided. Other structures within the area protected by the building line include the swimming pool and boat shed but these are excluded from the control.

9 Clause 19(2) of the LEP imposes a maximum floor space ratio of 0.7:1 for this site and cl 19(3) contains landscaped area requirements including requirements for substantial deep planting. The proposal comfortably complies with these development standards.

10 Also applicable is Leichhardt Development Control Plan 2000 ("the DCP") which includes the site in the Balmain Suburb and the East Balmain Distinctive Character Neighbourhood. Part 10.6.2 of the DCP describes the relevant desired future character, making reference to the rarity of early Victorian buildings that are of great importance to the history of early Sydney. Such buildings should be protected. Associated controls include the need to maintain individual patterns of architectural style and the character of the area by keeping development consistent in architectural style, building form and materials. All development is to be sympathetic to the historic and conservation values of the neighbourhood. Mature trees should be maintained.

11 Part B1.2 of the DCP sets out specific guidelines and controls including a building envelope control and a building location zone. New development is required to be located within the building location zone which is determined by averaging the front and rear setbacks of both of the adjacent buildings on either side of the subject site. The proposal extends well beyond the building location zone. The DCP allows non-compliances subject to the proposed building footprint being appropriate. To meet this test, certain issues must be addressed including: bulk and scale as viewed from adjoining properties; amenity of adjacent properties; retention of existing significant vegetation; character and scale of surrounding development; and solar access.

12 The application was advertised and eight objections were received from nearby residents, the Balmain Association and another resident group known as Defenders of Sydney Harbour Foreshores. Matters of concern to these objectors include:

Non-compliance with various council controls;
Failure to respond to the heritage significance of the existing house and adjoining houses;
Amenity impacts including view loss and swimming pool noise;
Loss of on-street parking.

13 A council officer's report was prepared examining the application in detail, incorporating the advice of Mr B Lay, council's architect/planner who raised no major objection to the proposed alterations and additions. Notwithstanding that this report recommended that the application be approved the council decided to refuse the application on 8 February 2005 for the following reasons:

1) Non-compliance with the building location zone;

2) Adverse bulk and scale when viewed from Harbour;

3) Impacts on the heritage values of the conservation area;

4) The objections raised by neighbours;

5) Loss of views.

The evidence

14 Resident objectors also gave evidence when the hearing began on site in elaboration of their written evidence. Of particular note was the evidence given on behalf of the Balmain Association that the reinstatement of the veranda to its original smaller form was appropriate, but it is disappointing that it will not be properly seen from Harbour as a result of the bulk of the Pavilion extension.

15 Expert heritage evidence was provided by Mr R. Staas, the Court appointed heritage consultant.

16 Additional heritage and other material was provided in the form of:

The Leichhardt Heritage Review: Stage 2 prepared by Godden Mackay Logan, Heritage Consultants ("the heritage review").
A letter from the applicant's architects Mr D Melocco outlining the design principles utilised in producing the subject design.
A letter from Mr C Lucas of Clive Lucas Stapleton and Partners Pty Ltd in relation to Rock Lodge
A comprehensive heritage impact statement for the subject property by Mr S. Davies of City Plan Heritage dated August 2004 ("the heritage impact statement") prepared in accordance with the NSW Heritage Manual guidelines.
Council officers’ reports.
An alternate design prepared by Mr P Hickey, an architect on behalf of the owners of 13 Simmons Street.

17 Having considered all of the evidence and having taken the view of the site and its environs I have decided that the determinative issue in this case is:

Whether the proposed pavilion extension will adversely affect the heritage significance of the existing house, its neighbours the conservation area and Simmons Park.

18 There were also a number of other issues, particularly the amenity concerns such as access to views and visual privacy as raised by the neighbours. These matters were dealt with in the council officer's report and I agree with the reasoning and the conclusions reached therein. Aspects associated with access and the presentation of the development of Simmons Street have been resolved.

19 According to Mr Lucas:

Rock Lodge should be listed as an item of local significance. It is intact and it is the oldest house on Simmons point.
Rock Lodge, together with No 13 Nos. 9 and 7 and No. 5 should be listed as an item of State significance. The group is intact, unchanged since c1910 and very rare because it is on a prominent point overlooking Sydney Harbour. I can't think of a better harbourside example.

20 The heritage review includes the site and Simmons Point in the East Balmain Conservation Area where, other than modest additions and discreet alterations little change can be expected. Non-contributory buildings may be replaced with sympathetically designed infill. It also notes that because the area is very visible from the City and from the harbour and the Harbour Bridge, special care is needed in dealing with changes which might offer public views from these places - scale, roof form and material colours are particularly important. More generally, care is needed in relation to applications for change to any building in these areas.

21 The heritage impact statement describes the existing house as a representative example of late Victorian period development in the local area. It suffers from some intrusive alterations. Although not an excellent example of its type, the dwelling is typically representative of a modest Federation period bungalow that contributes to the diversity of dwelling forms in the Balmain and Birchgrove areas.

22 The heritage significance of Rock Lodge has been considered by Mr Lay who recommended that the property should be listed as a heritage item. It is described as a:

Victorian Italianate Villa style house, prominent in the view from the water, and is part of a composite of waterfront houses on Simmons Point with intact service buildings onto Simmons Street.

23 The draft heritage item inventory sheet notes that Rock Lodge has historic architectural and townscapes values of significance. It also has group and landmark values in its context.

Heritage impacts

24 The heritage impact statement notes that the original cottage and its roof form will be retained and the veranda and balustrade overlooking the harbour will be restored. It also notes that the unsympathetic existing lower extension overlooking the harbour will be demolished. It concludes that the proposed works are appropriate to the site and the conservation area resulting in a minimal detrimental impact on the values that characterise the precinct or the nearby heritage item, being the Simmons Point reserve.

25 According to Mr Melocco the amended design now before the Court is the result of a number of meetings with and advices from council officers including a senior town planner and a heritage officer. It has also been amended in response to concerns expressed by Mr Staas, particularly in relation to the retention of internal building fabric.

26 Mr Lucas commented that nothing should be built to the north outside the envelope and footprint of the 1982 addition that can be demolished. The views of the original house from the water and views from the house to the harbour should be preserved. He also made a number of suggestions that have largely been incorporated into the proposal.

27 Conversely Mr Lay (who recommended that Rock Lodge be listed as a heritage item) commented that the proposed pavilion extension would optimise the northerly aspect for internal and external spaces as well as views to the north while reducing blocking the front aspect by comparison with the existing inappropriate extension. In addition it would protect the large gum tree. Mr M. Rowan a council town planner commented that even if Rock Lodge were a listed heritage item the same development outcome would have been encouraged on the basis that it would preserve the integrity of the dwelling by avoiding a second storey addition.

28 In considering the council's statement of issues Mr Staas outlined the outstanding heritage issues as:

The form, character and location of the pavilion addition to the north of the original house and its possible impact on the setting of the house and its neighbours when viewed from Sydney Harbour.
The impact of a driveway and garage to the Simmons Street frontage (now not pressed).
The general impact of development on the surrounding conservation area and in particular the group of houses on Simmons point.

29 More particularly, Mr Staas said that the pavilion extension is located away from the primary setting of the house and does not have a significant visual impact on any appreciation of it or its setting from the waterway. He rejected criticism of the "the box-like" form of the extension asserting that a more traditional form of addition would have a more significant visual impact. The chosen solution balances the visual impact with retention of the setting for the building in a reasonable manner.

30 Having considered these matters in some detail Mr Staas concluded that:

31 Mr Staas also said that change is inevitable and that this is an appropriate form of change taking into account the significance of the building and the conservation area. In the circumstances he concluded that the proposal could be approved subject to a number of detail changes in relation to the balustrade on the northern veranda, the window opening to Simmons Street and an appropriate heritage colour scheme. The applicant has now accepted these changes.

32 Clearly it is important to take into account the effect of the proposed pavilion extension when viewed from the waterway and from Simmons Park. It needs to be considered in the round, taking into account the importance of Simmons Point and its relationship to the three buildings in the group referred to by Mr Lucas. In this same context the non-compliance with the building location zone also becomes relevant, particularly as that part of the pavilion extension that will be in front of the building location zone line would be visible from both the Park and the harbour.

33 As described above, the DCP allows development to occur outside the building location zone if certain tests are met. In relation to bulk and scale and neighbour amenity I again agree with the conclusions reached by the council officers. Also, in this context it is relevant to recognise retention of existing significant vegetation, particularly the large gum tree.

34 In relation to views of the pavilion extension from the park and from the harbour, I agree with Mr Staas that there will be some impacts but these are not critical. Clearly, it will be seen to varying degrees from various viewing positions within the park including publicly accessible locations as well as locations beyond where safety barriers are likely to be erected. It will also be seen to varying degrees from various viewing positions on the harbour.

35 The pavilion extension will appear as an unambiguously modern extension amidst Victorian/Federation architecture. This, in itself does not make the extension inappropriate. To the contrary its low scale, simple architectural form and recessive colouring (as required by conditions) will distinguish it from the Victorian Italianate Villa style of Rock Lodge itself, this being an appropriate, well accepted design practice.

36 As effectively required by cl 19(7) of the LEP the consequences of the proposal on the heritage significance of Simmons Park itself as well as any views from it needs to be assessed. A similar approach can be applied not only to Rock Lodge but also the group of buildings of which it is a part, on the assumption that these buildings might in due course, be listed as heritage items. Similarly cl 19(8) requires an assessment of the impact of the proposal on the heritage significance of the conservation area.

37 When viewed from Simmons Park the pavilion extension will obscure some lower elements of buildings to the south-east but with the removal of the existing extension and the restoration of the veranda, more of the house will be able to be seen. Indeed by comparison, more of the house will be seen after the extension is completed, resulting in views of it being improved. The pavilion extension will not affect views from Simmons Park over the harbour and away from the dwellings, such views comprising, in my opinion, the more important aspect of the park's significance.

38 When viewed from the harbour the removal of the extension and the restoration of the veranda, leaving aside as one should the effect of existing vegetation, this will provide improved opportunities to appreciate the original home. Despite this the pavilion extension will restrict some close by views from the harbour especially from directly opposite the site and somewhat to the south-east.

39 I agree that the test is more than just preserving the building, but the applicant is to be given credit for the extent and the manner that the home itself is to be sensitively and appropriately modified and restored. The restoration of the veranda is very important and of considerable benefit to its heritage significance. Again, retention of the significant gum tree on site is important.

40 Whilst there are likely to be other design solutions that might possibly meet the requirements of the applicant, this is not a reason to reject the application. The relevant question is whether on balance the proposal meets, all of the relevant planning criteria and I am satisfied that it does.

41 There was some suggestion that this proposal may represent an undesirable incremental change. Mr Staas agreed that this proposal may represent incremental change but disagreed that it was undesirable. He said and I agree with him that changes within conservation areas are inevitable; the task is to manage this by facilitating appropriate alterations, additions and redevelopment.

42 Finally, and more generally I note that the proposal complies with the floor space ratio and landscape area requirements. As for the SEPP 1 objection in relation to the building line I am satisfied that in the circumstances and taking into account the reasoning contained therein that it should be upheld. Overall and in my view the proposal will meet the relevantly applicable objectives of the LEP and the DCP and thus warrants approval.

State Environmental Planning Policy No. 55

43 State Environmental Planning Policy No. 55 - Remediation of Land ("SEPP 55") is applicable to the site and the applicant and the council agreed that not enough information has been provided to ensure that its requirements have been satisfied by this application. Clause 7 of SEPP 55 requires that consent cannot be granted unless consideration has been given to the question of whether or not the land is contaminated. If the land is contaminated, remediation may or may not be required before development can proceed.

44 There exists on the site an amount of fill and it is not known with any certainty whether this fill contains, for the purposes of SEPP 55, any contaminants. Despite this it was agreed that contamination was unlikely to be a problem and I accept the likelihood that further investigations in the form of an expert report will confirm this conclusion. I have been advised that such a report is to be prepared on behalf of the applicant by an appropriately qualified consultant.

45 In the circumstances I agree that a finalized consent cannot be issued until the requirements of SEPP 55 have been met. Notwithstanding that the parties were in some doubt that this issue could be dealt with by the imposition of a deferred commencement condition, I am satisfied that this would be an appropriate instance where such a condition would be appropriate. As a consequence I have decided that, subject to an appropriate deferred commencement condition, development consent can be granted. The following condition D to this effect is to be incorporated into the deferred commencement conditions, which, but for condition A(f), were agreed between the parties:

D. A contamination report prepared by an appropriately qualified person has been carried out:

Conditions

46 Condition A(f) as sought to be imposed by the respondent requires that the pavilion extension be lowered by a further 300 mm to further mitigate impacts on neighbours and Rock Lodge itself. In his preliminary heritage opinion, Mr Staas concluded that the overall height of the pavilion extension could be lowered by up to 400 millimetres and to this end recommended that the maximum internal height at the kitchen level be 2.4 metres. The plans were accordingly amended.

47 I am satisfied that a further lowering of the building would be beneficial in terms of the bulk of the pavilion extension and amenity impacts and have decided to amend condition A(f) to this effect. Whilst the copper finish as suggested by the council would appear to be a good option I agree that the applicant should have the option of using other materials comprising zinc sheeting and built-up aggregate.

48 The orders of the Court are:

1. The appeal is upheld

2. Development application No. D/2004/482, for alterations and additions to the existing dwelling at 11 Simmons Street, East Balmain, is determined by the granting of development consent subject to the conditions in Annexure A hereto.

T A Bly

Commissioner of the Court

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CITATION:	Melocco and Moore Architects v Leichhardt Municipal Council [2005] NSWLEC 587
PARTIES:	APPLICANT Melocco and Moore Architects RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	10320 of 2005
CORAM:	Bly C
KEY ISSUES:	Development Application :- Alterations and additions to existing dwelling - building location zone - heritage significance - conservation area
LEGISLATION CITED:	Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000 State Environmental Planning Policy No. 1. - Development Standards State Environmental Planning Policy No. 55 - Remediation of Land
DATES OF HEARING:	23/08/05, 13/09/05 and 15/09/05
DATE OF JUDGMENT:	10/26/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr A Whealy, solicitor SOLICITORS Gadens Lawyers RESPONDENT Mr G Green, SOLICITORS Pike Pike & Fenwick