Milosevic v Inner West Council

[2016] NSWLEC 1360

Land and Environment Court

New South Wales

Medium Neutral Citation:	Milosevic v Inner West Council [2016] NSWLEC 1360
Hearing dates:	25 July 2016
Date of orders:	15 August 2016
Decision date:	15 August 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. D/2015/662 for a new two and three storey dwelling at 5 Stephen Street, Balmain is approved, subject to the conditions of consent at Annexure ‘A’. 3. The exhibits, other than exhibit 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION: new infill dwelling; impact on the significance of the heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mr Max Milosevic (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr S. Kondilios solicitor (Applicant) Mr S. Turner solicitor (Respondent)   Solicitors: Hall & Wilcox Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2016/153976

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2015/662, for a new two and three storey dwelling (the proposal), at 5 Stephen Street, Balmain (the site), by Inner West Council (the Council).

2. The appeal was subject to mandatory conciliation on 25 July 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

3. Following the conciliation conference, the only issue pressed by the Council is the deletion of the single garage, on the basis that the garage has an adverse impact on the heritage significance of the Balmain heritage conservation area (Balmain HCA).

The site and its context

4. The site is on the western side of Stephen Street, one property to the south from the corner of Gladstone Street. The site falls from the rear towards the street. The site has a frontage to Stephen Street of 8.23m and an area of 152.6sqm. The site is currently vacant.

5. There are two storey houses on either side of the site.

The proposal

6. The proposal is to construct a two and three storey dwelling, with a single garage accessed from Stephen Street, entry and plant room on the basement level; living areas and kitchen on the ground floor with a verandah to the street, and three bedrooms/two bathrooms on the first floor.

Planning framework

7. The site is zoned R1 pursuant to Leichhardt Local Environment Plan 2013 (LEP 2013) and the proposal is permissible with consent. The floor space ratio development standard for the site is 0.7:1 (Map FSR_011 LEP 2013). The site is within the Balmain HCA. The consent authority must consider the effect of the proposed development on the heritage significance of the heritage conservation area, at sub-cl 5.10(4) of LEP 2013.

8. Part C1.11 Parking of Leichhardt Development Control Plan 2013 (DCP 2013) includes the following relevant objectives and controls for on-site parking, as follows:

Background

For the foreseeable future the municipality will have significant car parking demands. The location, design and treatment of these areas have a major impact on the streetscape and will need to be carefully considered.

General Objectives

Reduce Car Dependency

O1 In order to reduce reliance on the car, residents and workers should be within walking distance of facilities and public transport.

O2 Priority is to be given to the needs of pedestrians, disabled people and cyclists above the needs of the car. This must be taken into consideration in the location and design of any parking facilities.

O3 To set and provide acceptable levels of on-site vehicle and bicycle parking spaces.

O5 To implement best practice management of parking and promote walkable, cycle-able mixed use neighbourhoods.

Urban Design

O8 The impact of car parking areas on the urban fabric of the neighbourhood should be minimised.

Residential Development

Background

These controls apply to all alterations and additions as well as new development and all types of residential development.

Visual Impact

C45 Development is to be consistent with the suburb profiles and desired future character statements within the Distinctive Neighbourhood controls within Part C Section 2: Urban Character of this Development Control Plan.

C46 Where a site has access to a rear lane/road, vehicle parking is to be provided from that rear lane/road only. Access from the primary street frontage will not be supported.

C47 Swept path diagrams indicating vehicle manoeuvring in and out of the off-street parking area under the existing on-street parking arrangements (on public road) must be provided.

C48 Where no rear lane or secondary road access is available, vehicle parking may be provided from the primary street frontage when:

a. it is located wholly behind the front wall of the main building of the dwelling;

b. has a single width parking space only;

c. has one access point per dwelling;

d. has a maximum vehicle crossing and parking space width less than 50% of the width of the front elevation of the main building on the site; and

e. is subordinate to the main building.

9. DCP 2013 includes objectives and controls for elevation and materials at C3.3, as follows:

Objectives

O1 Building elevation and materials visible from the public domain:

a. complement the prevailing or desired future character of the neighbourhood, in particular responding to the vertical and horizontal rhythm of the streetscape;

b. are human scale in proportion;

c. provide a high level of architectural quality, visual interest and articulation; and

d. provide a high level of engagement between the public and private realm, in particular activating the street level public realm.

Controls

C1 Building façades are:

a. divided into vertical bays consistent with the dimensions established by elements on adjoining development such as party walls and windows; and

b. divided into horizontal bandings that clearly delineate each storey and align with elements on adjoining development such as eaves, balconies, verandahs and roofs.

C4 Residential development in a Heritage Conservation Area is compatible with the Building Typologies contained in Appendix B – Building Typologies of this Development Control Plan, and includes defining elements such as:

a. roof pitch and form;

b. roof ridgeline;

c. gutter lines;

d. verandah balustrades and floor under-beams;

e. window patterns, proportions and details; and

f. balconies.

C6 Elevations incorporate elements such as recesses, balconies and awnings.

C7 New buildings shall be designed to provide a high level of architectural and visual

presentation to all elevations, avoiding blank, unarticulated side and rear elevations.

C9 Colour schemes are compatible with those prevailing in the street.

C11 Materials and finishes are compatible with those prevailing in the streetscape and the period of construction of the dwelling.

Expert evidence

10. Expert evidence was provided on behalf of the applicant by Mr Robert Staas (heritage) and Mr Jeffrey Mead (planning). Expert evidence was provided on behalf of the Council by Mr Brian McDonald (heritage and planning).

Consideration

11. The experts agreed during the conciliation conference on the street elevation and overall envelope for the proposal, based on sketches prepared by Mr Staas, which interpreted Mr McDonald’s views as expressed during the experts’ joint conference, and I accept the agreement of the experts. The proposal has been amended, to reflect Figures 1 and 2 below.

Figure 1 Exhibit J, Mr Staas’ sketch of the street elevation of the amended proposal

Figure 2 Exhibit J, Mr Staas’ long section, based on the street elevation above

12. The experts disagreed on the inclusion of the single garage in the proposal. The experts agreed that on-site parking accessed from the street is permitted by the planning regime.

13. According to Mr McDonald, the inclusion of the single garage in the proposal limits the ability of the applicant to provide a front garden, and a front garden is characteristic of Stephen Street. In his view, Stephen Street is one of the most intact streets in the Balmain HCA. Mr McDonald is of the view that the masonry horizontal element of the façade in the front elevation is uncharacteristic of the Balmain HCA. Mr McDonald’s main objection was that the basement level of the proposal is at the ground level, in contrast to the adjoining properties which both had raised ground floors, which is characteristic of the street.

14. In Mr Staas’ view, the driveway does not preclude providing a front garden in the front setback of the proposal. In his opinion, the proposal does align horizontally with elements of both its neighbours and there is an example of a terrace opposite which does not have a raised ground floor level.

15. According to Mr Mead, the proposal complies with control 48 of DCP 2013, as follows:

• There is no rear lane or secondary road access available, so vehicle parking is provided from the primary street frontage;

• The garage is located wholly behind the front wall and main building of the dwelling, being recessed behind the verandah over;

• The garage is a single width parking space only;

• The garage has only one access point;

• The width of the garage opening in the street elevation occupies approximately 40% of the width of the street elevation; and

• The garage is subordinate to the main dwelling, being recessed behind the verandah over.

16. As the proposal is for an infill contemporary dwelling, the absence of garages in Stephen Street in dwellings that broadly date from the key period of development in the Balmain HCA is not a sufficient reason in my opinion to find the single garage uncharacteristic or intrusive in the Balmain HCA, as clearly DCP 2013 does contemplate a single parking space accessed from the primary street frontage. I am satisfied that the proposal complies with each aspect of control 48 of DCP 2013 and that it is sufficiently deferential to the street elevation to be acceptable. While I understand Mr McDonald’s concern about the proposal being at the footpath level, I accept Mr Staas’ opinion that the amended proposal aligns sufficiently with horizontal elements of its neighbours and that it will be a decorous addition to the Balmain HCA.

17. The applicant submitted a cl 4.6 of LEP 2013 request to vary the FSR development standard for the site (exhibit C). In the hearing, the exceedance of the FSR development standard was not raised as an issue by the Council. The Council’s planner calculated the FSR of the original proposal as 1.07:1 (exhibit 4). Having considered the applicant’s request, I am satisfied that the overall envelope of the amended proposal is consistent with the relevant objectives of the FSR development standard, as it is compatible with the desired future character of the area in relation to building bulk, form and scale; it provides a suitable balance between landscaped areas and the built form; and it minimises the impact of the bulk and scale of buildings. It is therefore appropriate to provide a degree of flexibility in applying the FSR development standard to the proposal.

18. I am satisfied that the proposal, as amended by the agreed street elevation and envelope, including a step down in the ground floor slab at the rear to meet the existing rear ground level, will be a satisfactory addition to the Balmain HCA and can be granted development consent.

Directions

19. Directions were handed down on 26 July 2016, as follows:

The applicant is to amend the proposal to reflect the sketch plans produced by Mr Staas (exhibit J). The applicant is to file and serve the amended plans no later than Friday 12 August 2016.

The respondent is to file amended conditions of consent indicating the revision numbers of the amended architectural drawings no later than Friday 19 August 2016.

Liberty to restore on 2 days’ notice.

Orders will be made in chambers.

20. The amended plans, in accordance with the Court’s directions, were filed on 11 August 2016 and the amended conditions of consent were filed on 15 August 2016. Accordingly, I make the following orders:

21. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. D/2015/662 for a new two and three storey dwelling at 5 Stephen Street, Balmain is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibit 1, are returned.

­­­­­­____________

Susan O’Neill

Commissioner of the Court

153976.16 O'Neill (C) (325 KB, pdf)

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Decision last updated: 29 August 2016