Mod Urban Pty Ltd (ACN 610 351 909) v Inner West Council

[2023] NSWLEC 1026

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mod Urban Pty Ltd (ACN 610 351 909) v Inner West Council [2023] NSWLEC 1026

Hearing dates:

16-17 August 2022

Date of orders:

20 January 2023

Decision date:

20 January 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application DA/2021/1283 for demolition of an existing garage and construction of a new two-storey building at the rear of 49 Cambridge Street, Stanmore, is refused.

(3) All Exhibits are returned with the exception of Exhibits A and 2.

Catchwords:

Development Application –– demolition of existing garage and construction of a two-storey building in the rear yard of the existing dwelling house – amenity impacts on neighbours, conservation area.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.7

Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, s 34AA

Marrickville Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 5.9, 5.10, 6.5

Texts Cited:

Marrickville Development Control Plan 2011

Sydney Airport Australian Noise Exposure Forecast 2039

Category:

Principal judgment

Parties:

Mod Urban Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Driscoll (Solicitor) (Applicant)
C Ireland (Respondent)

Solicitors:
BCP Lawyers and Consultants (Applicant)
Inner West Council (Respondent)

File Number(s):

2022/122318

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Inner West Council (Council) of Development Application No DA/2021/1283 (the DA). In exercising the functions of a consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 564.7m² parcel of land identified as Lot 4 in DP 19946 at 49 Cambridge Street, Stanmore (the Site). The DA as submitted to the Council on 24 December 2021 sought consent for demolition of the existing garage and the erection of a two-storey building, with a living space, kitchen and storage on the ground floor and a bathroom and storage on the first floor. The DA was exhibited from 15 February 2021 to 1 March 2021 in accordance with Council’s DA notification policy, with three submissions received.

3. On 28 April 2022, the Applicant lodged this Class 1 Appeal with the Court. On 16 June 2022 the Council filed its Statement of Facts and Contentions with the Court.

4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). In preparation for the proceedings, town planning experts engaged by each party conferred and produced a joint report (Exhibit 4) and a supplementary joint report (Exhibit 8).

5. I presided over the s 34AA conciliation conference held on 16 August 2022. The proceedings commenced with a site view attended by me, the experts who had prepared the joint reports and other representatives of the parties. Oral submissions from three objectors (Mr Ireland on behalf of 53 Cambridge Street, Mr Signoretti on behalf of 5 Harrow Road and Mr Kunz on behalf of 2A Liberty Street) were received during the site view and prior to commencement of the conference. The submissions raised the following concerns in relation to the application:

• The height will result in an overbearing mass and scale impact upon the private open space (POS) of 53 Cambridge Street.

• Impact on setting of heritage item at 53 Cambridge Street.

• Will result in overlooking of POS and living areas of 53 Cambridge Street.

• Bulk and scale impact and sense of enclosure of POS of 2A Liberty Street.

• Visual impact upon POS of 5 Harrow Street.

• Inadequate side and rear setbacks.

• The Site has a history of unapproved building works.

• A condition of development Consent DA/2012/532 required demolition of the garage on the Site and provision of landscaping which has not been carried out.

• Can’t use the envelope of 2A Liberty Street as justification as not built on nil setback.

• The building is proposed to be located in an area of consistent landscaped spaces.

• Doesn’t attempt to design within an attic form.

• Reference to secondary dwelling on 53 Cambridge Street is incorrect as it is a pool house.

• The new dwelling will not have cross ventilation or solar access.

• The application does not address the secondary dwelling controls.

• Labelling the first floor as storage is an attempt to circumvent the Gross Floor Area and Building Code Controls.

• No parking proposed.

• Will result in the site having inadequate soft landscaping.

• Acoustic impact of second dwelling.

• Structural impact upon adjoining structures given history of unauthorised and unregulated works on the Site.

Background to the Appeal

6. Development Consent DA/2012/532 was granted by the former Marrickville Council on 4 July 2013 to demolish part of the existing building on the Site and carry out ground and first floor alterations and additions to convert the premises into a dwelling house and to erect a pool (Exhibit 5).

7. DA 2012/532, which was subsequently constructed, included the demolition of the garage at the rear of the Site (in the location of the proposed development), however it does not appear that the garage has been demolished.

8. The demolition of the garage now forms part of the current DA.

The Proposal

9. The DA seeks approval for the demolition of the existing garage and construction of a two-storey freestanding building in the rear yard of the Site. The proposed building is to be constructed in the north-western corner of the Site, with a 50mm setback to the north, east and west boundaries and have dimensions of 5.13m x 7.15m.

10. The original plans lodged with Council identified the use of the ground floor of the building as a living space, kitchen and storage, with a bathroom and storage on the first floor. Whilst no bedroom was identified on the plans, the proposed use of the building was unclear, as the title block on the plans showed a granny flat and the building was variously referred to in the plans and the Statement of Environmental Effects as a secondary dwelling, a secondary living area and residential accommodation. One of the Respondent’s contentions in the appeal related to the use of the building and the lack of clarity and contradictory information provided in the DA.

11. During the course of the appeal, in response to the Respondent’s contentions, amended plans were filed by the Applicant, for which leave was granted (Exhibit F). The amended plans identified that the use of the building would be for a studio on the ground floor and an office on the first floor and that no kitchen or bedroom was proposed. The amended plans also reduced the height of the proposed building by 1.21m, with an overall RL of 33.09.

12. The Respondent provided the amended plans to the objectors on 16 August 2022 and further written submissions were subsequently provided to the Court (Exhibit 9), The key concerns raised included the unreasonable bulk and scale and amenity impacts of the proposed building and inconsistency with the desired future character of the heritage conservation area.

The Site and Surrounds

13. The Site is a corner lot, identified with a red outline in Figure 1. It is an irregular shaped property with a frontage to Cambridge Street of 15.23m, a secondary frontage to Liberty Street of 34.625m, a western boundary dimension of 39.905m and an irregular rear boundary dimension of 20.39m.

14. The Site is occupied by a two-storey dwelling house that fronts Cambridge Street, with vehicular access off Cambridge Street along the western boundary to a single garage that is constructed on the boundary and attached to the dwelling.

15. A swimming pool exists between the dwelling and Liberty Street, with a high brick boundary wall provided to that street frontage. The rear, western corner of the Site contains a single storey garage (which was proposed to be demolished under the previous DA/2012/532).

Figure 1 – Location Plan

16. The immediately adjoining property to the north, 2A Liberty Street, is a small, 'L-shaped' property which has more recently been developed with a part two/three storey dwelling. The dwelling has an elevated terrace (POS) on the first floor located adjacent to the garage on the Site.

17. The immediately adjoining property to the west, 53 Cambridge Street, is a two-storey dwelling, listed as an item of heritage. Adjoining the common boundary with the Site is a landscaped POS area with a raised paved terrace adjoining the house. A "pool house" is located at 53 Cambridge Street, immediately adjoining the garage on the Site.

Planning Framework

18. Section 4.15 of the EPA Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

19. The key statutory controls relevant to the application are as follows:

Marrickville Local Environmental Plan 2011 (LEP 2011), with the relevant clauses:

• Clause 2.3: Zone Objectives and Land use Table;

• Clause 4.3: Height;

• Clause 4.4: Floor Space Ratio (FSR);

• Clause 5.9: Preservation of Trees;

• Clause 5.10: Heritage Conservation;

• Clause 6.5: Development in areas subject to Aircraft Noise.

20. The site is zoned R2 Low Density Residential and the development is permissible, with consent, in the zone.

21. The Site and surrounding properties have a maximum height control of 9.5m under cl 4.3 of MLEP and a maximum floor space ratio (FSR) of 0.6:1 under cl 4.4 of MLEP, as identified on the Height and FSR maps. The planning experts agree that the proposed development complies with cll 4.3 and 4.4.

22. The Site which is outlined in blue in Figure 2 below, is not identified as an item of heritage but is located within the C17 Kingston South Heritage Conservation Area. The Site is also located adjoining and opposite 3 items of heritage at 53 Cambridge Street, 15 Liberty Street and 29-33 Liberty Street. The properties on the eastern side of Liberty Street are not contained within the heritage conservation area but there are a series of heritage items on the opposite side of Liberty Street.

Figure 2 – Conservation Area and Heritage items

23. Given the site is mapped within the heritage conservation area C7- Kingston West, cl 5.10 Heritage conservation applies and is a precondition to consent.

24. The objectives of cl 5.10 of LEP 2011, “Heritage Conservation” at subcl (1), are to conserve the environmental heritage of the Marrickville area and the heritage significance of heritage conservation areas, including associated fabric, settings and views.  The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).

25. The Council does not contend that the proposal has a negative impact on the heritage conservation area that warrants refusal of the application, but raises the consideration of heritage as part of the merit assessment of the development’s context. The experts agree that cl 5.10(4) is satisfied. Clause 6.5 of MLEP states:

(3)    Before determining a development application for development to which this clause applies, the consent authority:

(a) must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and

(b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021—2000, and

(c) must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2000.

26. The Site is located within the 20-25 ANEF contour, based on the Sydney Airport 2039 ANEF contour map. Therefore, the DA must be assessed to ensure that internal noise levels are limited to those recommended in Australian Standard AS 2021:2015 Acoustics – Aircraft Noise Intrusion – Building Siting and Construction (AS 2021:2015). Both planning experts, in their joint expert report (Annexure 4) agree that the applicant has provided an Aircraft Noise Assessment (Annexure C) prepared by Acoustic Logic, dated 11 July 2022 which concludes, subject to noise attenuation treatments, the internal noise levels will comply with the AS 2021:2015. I am therefore satisfied that the jurisdictional requirement of cl 6.5 of MLEP can be complied with, subject to compliance with the recommendations in the Aircraft Noise Assessment.

27. The Marrickville Development Control Plan 2011 (DCP 2011) applies to the development. The relevant parts of DCP 2011 are:

•    Part 2.1: Urban Design

•    Part 2.3: Site and Context Analysis

•    Part 2.6: Visual and Acoustic Privacy;

•    Part 2.7: Solar Access and Overshadowing;

•    Part 2.10: Parking;

•    Part 2.18: Landscaping and Open Spaces;

•    Part 2.20: Tree Management;

•    Part 4.1.4: Good Urban Design Practice;

•    Part 4.1.6.2: Building Setbacks;

•    Part 4.1.7.5: Loft Structures over Garages:

•    Part 8: Heritage; and

•    Part 9: Strategic Context.

28. The Marrickville Development Control Plan 2011 (MDCP) applies to the assessment of the application.

29. Part 4.1.6.2 provides setback controls for residential development. The Objectives of this Part are:

“013 To ensure adequate separation between buildings for visual and acoustic privacy, solar access and air circulation.

014 To integrate new development with the established setback character of the street and maintain established gardens, trees and vegetation networks.”

30. The relevant setback controls in Part 4.1.6.2 are as follows:

“Side setback must be determined in accordance with the following table:

Rear setback must:

a. Where a predominant first storey rear building line exists, is consistent and visible from the public domain, aim to maintain that upper rear building line;

b. In all other cases, be considered on merit with the adverse impacts on the amenity of adjoining properties being the primary consideration along with ensuring adequate open space;...”

31. Part 8 Heritage identifies the scope and significance of the C17 Kingston South Heritage Conservation Area. The Statement of Significance for the C17 Kingston South Heritage Conservation Area is found in Part 9.7 of the DCP as follows:

“The Kingston South Heritage Conservation Area is aesthetically significant for its example of late 19th century to mid 20th century development including 19th century villas and their garden setting, 19th century houses (detached and semi-detached) and their garden setting, 19th and early 20th century terraces and houses (detached and semi-detached), and a group of Inter-War residential flat buildings in Holt Street. The HCA represents the rich variety of built forms, collectively represent of the cultural needs and aspirations of the community that built and occupied them between 1854- 1940.”

Expert Evidence

32. The Court heard expert evidence from Mr Matthew O’Donnell (Planner) for the applicant and Ms Kerry Gordon (Planner) for the Council. The experts participated in a joint conferencing process and produced a joint expert report that was tendered in the proceedings as Exhibit 4 and a supplementary report (Exhibit 8) and gave evidence in Court.

33. The experts agreed in their joint report (Exhibit 8) that:

• The amended plans no longer represent a secondary dwelling as the building is not capable of being occupied as a separate domicile, subject to conditions which indicate no kitchen or bathroom can be provided in the building and the first-floor office is only used by the residents of the dwelling.

• The proposed development would increase the shadowing of the private open space of the existing dwelling on the Site at midwinter between 10am and 2pm.

• The amended plans reduce the height of the proposed building by 1.21m.

• The applicable controls require a 1.5m side setback for a two-storey component where the width of the lot exceeds 8m and an assessment on merit regarding visual impact, solar access to adjoining dwellings and context where the width of the lot is less than 8m.

• The applicable rear setback control is based on a merit assessment with the primary considerations of merit related to adverse impacts on the amenity of adjoining properties and ensuring adequate open space. It is agreed that the proposal provided an adequate quantum of open space.

The issues

34. The planning experts agree that the issues relating to the lack of clarity about the proposed use of the building and the impact of Aircraft Noise and compliance with cl 6.5 of MLEP are both now addressed. I am therefore satisfied that these issues are no longer in contention.

35. In terms of heritage conservation, there is no contention raised by the Respondent that the proposed development will result in impacts on the heritage conservation area, although I note the objectors raised this issue in their written submissions and oral submissions during the site inspection. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage conservation area, based on the evidence before the Court and my observations at the site view, I am satisfied that the effect of the proposed development on the significance of the conservation area is acceptable.

36. In essence, this appeal is about whether the visual bulk and location of the proposed building to the rear of the dwelling at 49 Cambridge St has an adverse effect on the amenity of the neighbouring properties - in particular, the three directly adjoining properties, at No 53 Cambridge, No 5 Harrow Road and No 2A Liberty Street.

37. The major issues in contention relate to neighbourhood amenity, the height of the proposed building, its nil setbacks from three boundaries, its visual impact on number 2A Liberty Street and the increase in the overshadowing of the subject property in mid-winter. These issues are dealt with below.

Overshadowing

38. The experts agreed that the proposed development would increase shadowing of the private open space of the existing dwelling on the subject Site (49 Cambridge Street) at midwinter between 10am and 2pm.

39. However, the experts did not agree whether the extent of additional shadowing of the private open space at 49 Cambridge Street is acceptable.

40. Mr O’Donnell’s evidence is that the proposed building will result in a marginal increase in the overshadowing onto the Site and this reduction in solar access is acceptable as the overshadowed area is at the rear of the site and would not be frequently utilised. Mr O’Donnell also notes that the existing amenity of the rear open space in relation to solar access is currently very poor and this is primarily as a result of the existing significant overshadowing that has resulted from Council previously having set a precedent for allowing overshadowing by having disregarded their own solar access and overshadowing controls contained within the MDCP.

41. Ms Gordon provided evidence that the POS for the existing dwelling in the amended plans is comprised of the swimming pool to the east of the dwelling (approximately 53m²), the covered terrace to the north of the dwelling (approximately 16.5m²) and the grassed area between the dwelling and the rear wall and garage (approximately 82.5m²). Ms Gordon notes that Control C8ii of Part 2.7.5.1 of MDCP requires that 50% of the finished surface of the POS is to receive a minimum of 2 hours of solar access at midwinter between 9am and 3pm. The site currently does not comply with this control and the proposal significantly reduces the extent of solar access retained.

38. Ms Gordon’s evidence is that as the existing dwelling does not satisfy this control, it is potentially reasonable to consider the control in relation to the minimum requirement for POS for a dwelling, which as identified by Control C12 of Part 2.18.11.1 of MDCP is 45m² or 20% of the site area, whichever is greater, subject to a minimum 3m width. With a site area of 565.4m², a minimum POS area of 113.1m² would be required and 56.5m² of that POS would need to retain solar access for 2 hours at midwinter.

39. Ms Gordon notes that based on her assessment of the shadow diagrams, the proposal would reduce the available solar access to the POS areas that are usable at midwinter to an area surrounding the pool, having a maximum area of 16m², with a small amount of retained solar access to part of the covered veranda. In her view, the amended plans would therefore result in further non-compliance with the control and would reduce the amenity of the POS of the dwelling at 49 Cambridge Street.

40. In relation to overshadowing of the adjoining properties, the experts agree that there is no overshadowing of 2A Liberty Street. In relation to 53 Cambridge Street, there is a marginal increase in overshadowing, and I note the response of Ms Gordon, who said that in her view, the impact of the overshadowing of 53 Cambridge Street is not substantial and is of no concern to her. Her key concern was the overshadowing of the subject Site.

41. I do not accept Mr O’Donnell’s evidence that the overshadowed part of the subject Site would not be well utilised or that the control is not relevant as the area Council has previously disregarded its solar access controls. In Mr O’Donnell’s own words, the existing amenity of the rear open space in relation to solar access is currently very poor. The proposed two-storey building in the rear yard will further erode the level of available solar access to 49 Cambridge Street and I accept Ms Gordon’s evidence with regard to the reduction in amenity of the dwelling as a result of the proposed building.

Height, Setbacks and Visual Impact

46. The key contentions in these proceedings are the proposed height of the structure, its lack of side or rear setbacks on three boundaries and its potential amenity impacts on 2A Liberty Street.

47. Firstly, with respect to the issue of setbacks, in relation to the eastern setback which adjoins the two-storey component of the building on 2A Liberty Street which is on a nil set back to that boundary, the planning experts had no concerns as it’s a two-storey wall against an existing two-storey wall.

48. In relation to the western wall where it adjoins the pool house at 53 Cambridge Street which has a nil setback. Ms Gordon’s evidence was that she was concerned about the height in that location and because of the height it should be set back. Mr O’Donnell’s evidence is that there is no impact because the proposed building is adjoining an existing building on a nil setback and that building is orientated to face east towards the swimming pool at 53 Cambridge Street.

49. I am satisfied from the evidence of the experts and my observations on Site, that there is no issue with a nil setback on the western boundary of 53 Cambridge Street.

50. In relation to the northern boundary of the subject site where it adjoins the (first floor) terrace at 2A Liberty Street, Mr O’Donnell has no concerns in relation to the impacts of the proposal on that adjoining boundary. It is Mr O’Donnell’s evidence, that when standing on that balcony, that you can see directly into the top level of number 49, and you can also see directly into 53 Cambridge Street. However, Mr O’Donnell notes that someone sitting on the balcony of number 2A will not be overlooked or have any problems of privacy impacts resulting from the proposed building. Mr O’Donnell is of the view that the proposed building, which complies with the maximum height of building control under MLEP, is lower than the maximum height of 2A Liberty Street and subservient to the main dwellings at 49 and 53 Cambridge Street, is acceptable and appropriate in the circumstances.

51. In relation to the impact on the terrace of 2A Liberty Street, Ms Gordon has an alternate view. She notes that the Site is located in a context where adjoining built forms have nil setbacks from the common boundary, however these adjoining buildings are significantly lower in height than the proposed building which has a height of RL 34.3 (as amended), with solar panels projecting above that height. Ms Gordon notes that the height of the adjoining developments which have a nil side or rear setback is as follows:

Outbuilding on 53 Cambridge Street	RL 31.24
Terrace floor on 2A Liberty Street	RL 29.31
Terrace balustrade on 2A Liberty Street	RL 30.76
Parapet on 2A Liberty Street	RL 32.31

52. Ms Gordon’s evidence is that the proposed development, with no side or rear setbacks and a height of between 1.99m and 4.99m higher than the immediately adjoining development is not appropriate in the context. Ms Gordon conceded in her oral evidence that whilst a lower/single storey building proposed in this location would be acceptable, the currently proposed two-storey building has unacceptable visual bulk impacts when viewed from the terrace of 2A Liberty Street.

53. Ms Gordon’s argued that:

• The proposed height of the building in the amended plans is 1.85m higher than the roof of the cabana on 53 Cambridge Street.

• The proposed height of the building in the amended plans is 3.78m higher than the floor of the main terrace, 2.33m higher than the balustrade to the main terrace and 0.78m above the height of the brick dwelling walls on 2A Liberty Street.

• The height of the proposed building in the amended plans, constructed on nil side and rear setbacks, is therefore still not appropriate in the context. The only other two-storey building in the rear yard area of this context is the front portion of 2A Liberty Street, which is a significantly different situation given that building is the main dwelling and is in close proximity to the street, where a two-storey building would be expected to be located. Further, this element of the building is 0.78m lower than the proposed building, has a 1.5m setback to the side boundary and a nil setback for a length of wall of only 3.5m on the rear boundary.

• The proposed building as amended, has a two-storey form with a 5.1m length of building on two sides with a nil setback and a rear nil setback for a length of 7.2m, resulting in 17.4m of two-storey wall being constructed with a nil setback to neighbour’s boundaries.

54. Ms Gordon conceded in her evidence that such a building may be appropriate in a different context, if it was not located adjoining the rear boundary or in close proximity to a dwelling and its main terrace, or if it was lower, such as a single-storey building. She concludes that the combination of the lack of setbacks and the height of the building have a significant and detrimental impact upon the amenity of the main (first floor) terrace of 2A Liberty Street. It is her conclusion that the proposed two-storey building in the amended plans still fails to satisfy the assessment criteria in MDCP in relation to setbacks and is not supported.

55. In considering the evidence of the experts and with the benefit of the site inspection I accept Ms Gordon’s view that the proposed two-storey building, with nil setbacks from the rear boundary will result in an unacceptable visual impact on the first floor (main) terrace of 2A Liberty Street.

Findings

56. I agree and accept the Respondent’s submission that the proposed two-storey building, with nil rear and side setbacks will result in significant amenity impacts on the main terrace at 2A Liberty Street. When viewed from that terrace the proposed wall of the building will be significantly higher than the balustrade of the terrace and given there is no set back from the boundary, the visual impact on those using the adjoining terrace will be unacceptable.

57. In considering the evidence of the experts, the submissions made by the objectors and with the benefit of the site inspection, I find that the development will result in unacceptable amenity impacts and should be refused.

Orders

58. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA/2021/1283 for demolition of an existing garage and construction of a new two-storey building at the rear of 49 Cambridge Street, Stanmore, is refused.

3. All Exhibits are returned with the exception of Exhibits A and 2.

L Sheridan

Acting Commissioner of the Court

**********

Decision last updated: 20 January 2023