Morad v Inner West Council

[2019] NSWLEC 1005

Land and Environment Court

New South Wales

Medium Neutral Citation:	Morad v Inner West Council [2019] NSWLEC 1005
Hearing dates:	10-11 December 2018
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application No. DA 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain East is refused (3) The exhibits, other than Exhibits A, B, K, 1 and 7 are returned.
Catchwords:	DEVELOPMENT APPLICATION - heritage item; heritage significance; stormwater
Legislation Cited:	Environmental Planning and Assessment Act 1979 Leichhardt Local Environment Plan 2013 State Environmental Planning Policy No.55 State Environmental Planning Policy (Coastal Management) 2018
Cases Cited:	Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096
Texts Cited:	National Construction Code
Category:	Principal judgment
Parties:	Mohammad Morad (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Seymour (Applicant)   Solicitors: Dentons (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/00012287
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain east (the site) by Inner West Council (the Council).

2. Mr Mohammed Morad is the owner of the site which comprises Lot 1 DP 1100371; Lot 1 DP 68016; Lot 2 DP 66363, and Lease Lot Lease Plan LH2020 in DP 441489 with a site area of 818 square metres. The site contains a primary dwelling house, a separate two-storey boathouse and slipway which is described as Heritage Item ‘I363’ in Schedule 5 of the Leichhardt Local Environment Plan 2013 (LLEP).

3. The site falls steeply to meet the foreshore of Sydney Harbour, and lies within a heritage conservation area.

The proposal

4. The applicant seeks approval of amalgamation of the four lots into one lot for the purposes of completing works that comprise;

• Demolition of the unsympathetic western wing to the boathouse, BBQ shelter and extensions to the ground floor and first floor balcony of the main dwelling, and;

• Demolition and rebuilding of the western portion of the main dwelling fronting Clifton Street to achieve flood safety and vehicular access;

• Restoration and reconstruction of original elements in traditional materials;

• External landscape works which include the removal of existing trees on the site, and the construction of a swimming pool.

Issues

5. Originally, the Council had raised contentions in its Amended Statement of Facts and Contentions (Exhibit 1) related to insufficient information to enable a complete assessment of the application in respect of;

• No information submitted to address State Environmental Planning Policy (Affordable Rental Housing) 2009. The Council subsequently withdrew this contention as no longer relevant.

• The use of the affected window at 11 Gallimore Avenue, Balmain East. The Council did not press this contention.

• Assessment by the Applicant of contamination in and around the lease lot and in the location of the proposed swimming pool. The Council later considered that remediation can be a condition of consent.

• A lack of a Foreshore Risk Management Report. The Council did not press this contention.

6. The Respondent acknowledges that the work proposed to the Clifton Street frontage is the major point of disagreement between the parties and that the Council would be happy to approve the balance of the proposal, provided the Applicant satisfactorily addressed remaining issues. The remaining issues can be summarised as follows;

1. Demolition of heritage item to rebuild the western portion of the main dwelling to achieve flood safety and vehicular access

2. Removal of Tree 1 (T11) and Tree 12 (T12)

3. Possible contamination and remediation of the ‘Lease Lot’

4. Objector’s submissions

7. In essence, the Applicant submits that the imposition of stormwater overland flow during extreme weather events imposes barriers to accessing the existing home from Clifton Street and that the inundation of that flow puts at risk the integrity of the heritage item. The application before the Court is for approval of the proposal which would result in demolition of a significant part of the heritage item.

8. The parties agree that the FSR applicable to the site is 0.7:1, however the parties do not agree on the method of calculating the Floor Space Ratio used by the Applicant. In the event the Court agreed with the Council’s Planning expert’s interpretation of the FSR, and for abundant caution, the Applicant submitted a cl 4.6 variation request to vary the FSR control, which I consider in more detail at [50].

Objectors evidence

9. A number of local residents took up Council’s invitation to address the Court about their concerns. Notes of that oral evidence were agreed by the parties in later submissions which are summarised as follows;

• Inaccuracies in the plans which could mislead the Court.

• The application was articulated as alterations and additions, but should be defined as demolition.

• The demolition will result in the removal of significant amount of 1840s and 1880s building materials.

• If the development involves demolition, then there is a suite of planning controls which will come in to play which have not been considered.

• The use of the boathouse for residential use will lead to significant noise impact to its neighbours.

• The intensification of parking will impact the area.

• Inappropriate for a garage door within a front elevation.

• Proximity of new structure, impact of overlooking and overshadowing in to 11 Gallimore Avenue.

• Stormwater overland flow and drainage during weather events.

• Impact of proposed development on privacy and views in relation to adjacent properties.

Planning Framework

10. As the application was lodged, but not finally determined, before the commencement of the Statement Environmental Planning Policy – Coastal Management, the State Environmental Planning Policy – Coastal Protection applies and is relevant to the site;

2 Aims of Policy

(1) This Policy aims:

(a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and

(b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and

(c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and

(d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge, and

(e) to ensure that the visual amenity of the coast is protected, and

(f) to protect and preserve beach environments and beach amenity, and

(g) to protect and preserve native coastal vegetation, and

(h) to protect and preserve the marine environment of New South Wales, and

(i) to protect and preserve rock platforms, and

(j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and

(k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

(l) to encourage a strategic approach to coastal management.

…

8   Matters for consideration

The matters for consideration are the following:

(a)  the aims of this Policy set out in clause 2,

…

(d)  the suitability of development given its type, location and design and its relationship with the surrounding area,

(e)  any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,

11. The provisions of State Environmental Planning Policy No.55 – Remediation of Land (SEPP 55) apply to the site and provide that:

7   Contamination and remediation to be considered in determining development application

(1)  A consent authority must not consent to the carrying out of any development on land unless:

(a)  it has considered whether the land is contaminated, and

(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

12. The site is zoned R1 General Residential pursuant to LLEP 2015 and the proposal is permissible with development consent.

13. The objectives of Clause 5.10 (1) include a provision to (a) to conserve the environmental heritage of Leichhardt, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

14. Clause 5.10 (2)(a) (i) requires development consent for the demolition of a heritage item, and Clause 5.10 (4) states that the consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

15. Clause 5.10 (10) is in the following terms;

Conservation incentives

The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:

(a)  the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b)  the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c)  the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d)  the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e)  the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

16. Clause 6.2 of the LLEP, at (2), states that Development consent is required for earthworks unless: (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given. Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in Cl. 6.2 (3).

17. Clause 6.4 of the LLEP states that;

6.4 Stormwater management

(1) The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters.

(2) This clause applies to all land in residential, business and industrial zones.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

18. Clause 6.5 of the LLEP contains provisions related to development on foreshore areas.

19. Clause 6.6 of the LLEP requires, in deciding whether to grant consent for development in the foreshore area, the consent authority must consider whether and to what extent the development would encourage the following: (e)  the reinforcing of the foreshore character and respect for existing environmental conditions.

Expert evidence

20. The Applicant relied on the expert evidence of Mr Paul Davies (heritage), Mr Louis Panagopoulos (stormwater), Mr Andrew Darroch (planning). The Council relied on the expert evidence of Mr James Phillips (heritage), Mr Joe Bertacco (stormwater), Ms Denise Benger (planning).

21. The applicant relied on the expert arboricultural evidence of Mr Stuart Sutton and the Council relied on the expert evidence of Mr Sven Mogensen. These experts provided a joint expert report (Exhibit 3) and were not required to give oral evidence. The applicant relied on the expert traffic engineering advice of Mr Ross Nettle and the Council relied on the expert evidence of Mr Joe Bertacco. These experts provided a joint report (Exhibit 4) and were not required to give oral evidence.

Heritage

22. The experts agree on the summary history of the site in terms of relative dates of construction for the various components of the buildings on the site, that unsympathetic alterations had occurred to the heritage item over time, and that the existing building contributes to the heritage conservation area. The experts agree that the works proposed to retain and restore original features of the heritage item in traditional materials significantly improve the understanding of the heritage item when viewed from Sydney Harbour, and are supported.

23. The experts disagree on the impact of the proposed demolition on the heritage item, and on the heritage conservation area and the streetscape. As stated in the Joint Expert Report, Mr Phillips believes that the level of intervention in the item by the demolition of a major component of the building on the site will have an adverse and unacceptable impact on the heritage item and the conservation area, and that the front elevation is its principal street elevation and, as such, carries a level of importance that makes demolition unacceptable.

24. Mr Davies considers that the provisions of the LLEP and the DCP do not provide for the demolition of the contributory element to Clifton Street, however depending on the findings of the consent authority on the issues pertaining to stormwater and overland flow then he believes that the proposed replacement building is suitable in this location. Mr Phillips is of the view that solutions to the stormwater issue may avoid or minimise impact on the Clifton Street portion of the heritage item, but that they do not appear to have been fully explored.

25. Mr Davies considers that the heritage item has lost much of its original external joinery, detail, internal plasterwork, floor levels, fireplaces and room configuration and, as such, it would not normally reach the threshold for individual significance as a heritage item without the earlier 1840’s-1860’s stone cottage on the site.

26. Mr Phillips is of the view that the Clifton Street frontage can be regarded as largely intact, and that the conservation of this frontage can be easily achieved by returning original windows and openings to the facade, and reinstating original roof materials.

27. The proposal includes a garage for a single vehicle that is accessed via an operable steel framed lightweight masonry bay window that is designed to mimic the design of the existing bay window, and which is intended to open by means of a 3-leaf door to future detail. The Applicant tendered examples of garage doors in the style of historic building features, including bay windows (Exhibit G).

28. The experts disagreed on this aspect of the proposal. Mr Davies regards the “inclusion of a garage door within the façade in this location is a suitable design outcome and will not adversely impact on the significance of the conservation area if the principle of replacement is accepted”. Mr Phillips states that “aside from the adverse and unacceptable impact on the heritage item, no evidence has been presented as to how this door might be constructed.”

29. In their oral evidence, the experts agreed that it may not be regarded as unreasonable, if the Clifton Street frontage had to be demolished, for the Applicant to take a ‘contemporary’ approach to the Clifton Street frontage. As Mr Davies put it, this approach could be considered to result in “an honest new building” but, in relation to the current proposal, Mr Davies was of the view that “copying the building that is currently there is a reasonable approach, and as a memory of the former house”. In the Joint Expert Report, Mr Davies also stated that “Design options were considered for a more contemporary design solution however it was considered that a traditional form and massing was the best option for this location having regard to the interrelationship between the earlier cottage with the later Victorian dwelling that was superimposed over it”.

Stormwater

30. The experts agree that the site is subject to overland flow due to its position at the lower end of Clifton Street, which falls towards the site and which, during extreme weather events, appears to result in some stormwater overtopping of the existing kerb on Clifton Street.

31. A view on site further suggests a history of overland flow in Clifton Street. A ‘double-height kerb’ has been built as a protective barrier to the Clifton Street frontage of the site. Three stormwater drainage pits, owned and managed by the Council, are located at the base of the double-height kerb, along the Clifton Street road frontage.

32. From a view on site, it is also clear that the volume of overland flow is further compounded by overland flow from Gallimore Avenue. This aggregated volume of flow is then caused to concentrate where Clifton Street turns 90 degrees to the North-West towards Clifton Lane (and the area known as Minty’s Steps).

33. The experts agree that the site is not identified as a Flood Control Lot in the Leichhardt Flood Study, prepared by Cardno in November 2014 and as a result, no flood controls are applicable to the site. Mr Bertacco contends that the problem that exists on the site is not a flooding problem, but a drainage problem.

34. Mr Panagopoulos is of the view that the Leichhardt Flood Study (2014) does not accurately identify road flow and site flow in a 100 year storm event. As evidence of this, he prepared his own study that he describes as an analysis of the “micro-effects of land topography and detailed surface/ground survey”, and which includes figures taken from the Leichhardt Flood Study and compares indicative flood depths for the 100 years Average Recurrence Interval (ARI) with the Probable Maximum Flood (PMF) storm events – noting that while no 100 year flooding is indicated on the site, PMF flows may be expected to make their way in to a portion of the property.

35. Mr Panagopoulos referred to Fig 33 of his Overland Flow Analysis Report (appended to Exhibit 6) in which he said modelling predicts that, during extreme weather events, overtopping of the kerb at the Clifton Street frontage of the house could generate ponding in the sunken verandah area to a depth of about 500mm.

30. Mr Panagopoulos agreed that the depth of 500mm was indicative of the rate at which overland flow may be predicted to enter the site, and was not an actual measurement of the depth of water ponding in this location as it would “seep away” prior to reaching this depth.

31. In submissions, the Respondent cites an earlier report prepared by Mr Panagopoulos for the Applicant, which was based on a drainage solution at the Clifton Street frontage, dated 27 October 2017 and which states:

Based on calculated flow depths in the [then] proposed concrete channel, the highest anticipated water surface is at RL12.84 at the southwest corner of the site. By applying 500mm freeboard protection, the corresponding minimum recommended internal floor level is RL12.84 + 0.500 = RL13.34.

38. Mr Bertacco, supported by Council submissions, is of the view that, even if the site was defined as flood affected, the heritage status of the site would likely result in an exemption being granted under Development Control Plan Part E1.3.1, Control C2 (c), and E1.3.2, Control C2 (c) to provide ‘freeboard’ below the level of the floor, which would have the effect of permitting the existing floor levels of the heritage item to be retained, with the exception of the entry hallway which is at RL12.78.

39. Mr Bertacco proposes that a 150mm step or difference between the existing internal floor level and the finished ground levels adjacent to the house, as set out in cl 3.1.2.3 of the National Construction Code (NCC), would be sufficient to protect the heritage item from inundation.

40. Mr Panagopoulos contends that raising the floor levels is consistent with the Australian Rainfall and Runoff 2016 Ministerial Foreword publication to achieve a standard minimum freeboard of 300mm.

41. Mr Bertacco proposes alternatives that would remove water from the site, and avoid the need to demolish the heritage item. These alternatives include;

• New pipes in Clifton street

• Undertake the Road Works without the proposed garage

• Raise the kerb and build a hob wall

• Waterproofing.

42. The Applicant asserts that three of the options identified by Mr Bertacco propose works outside of the Applicant’s property and so are beyond the Applicant’s control; and that the only remaining alternative is to waterproof the building but that this will not solve the problem of water overtopping the boundary.

43. During their evidence, the experts agreed that the existing sunken verandah was currently acting as a form of ‘bathtub’ that contains water in a manner that does not permit it to escape at a rate that would be desirable to avoid inundation, and that if drainage was located within the sunken verandah of the Clifton street frontage, it could assist in the removal of water that results from overtopping of the existing double-height kerb.

44. Mr Bertacco estimated that pipework in the order of 300mm diameter may be required to remove water from the area. Mr Panagopoulos estimated that pipework in the order of 600mm diameter may be required. This gave rise to an alternative which may be summarised as ‘multiple large pipes’ that could provide multiple drainage points while mitigating the risk of blockage and inundation. This alternative is consistent with advice contained in the Overland Flow Analysis Report, prepared by Mr Panagopoulos for the Applicant, and which states, at item 3 on page 49, that:

“the sunken front entry court should either be drained without any direct pipe connection to potential flood affected areas (eg: not into a street pit), or the surface levels should be raised to avoid having a sunken area where water can accumulate”

Planning

Floor Space Ratio

45. The experts did not agree on the method of calculation used to determine the Floor Space Ratio in the application. Ms Benger contends that the applicant has not included the garage, stairwells or part of the lower boathouse in the calculation of gross floor area, and that once these areas are included the development exceeds the maximum permissible floor space ratio on the site. Mr Darroch disagrees with Ms Benger’s interpretation.

46. The Council did not press this contention, however as the Applicant provided a written request to justify the contravention of the FSR under Cl 4.4 of the LLEP, the application is considered further in [50].

Likelihood of contamination

47. The experts did not agree on whether or not it is likely that the fill in the Lease Lot area, and in the location of the proposed swimming pool, is contaminated land and so requires remediation. In the amended Statement of Environmental Effects (Exhibit C), the Applicant asserts that the continuing residential use of the site makes the possibility of contamination unlikely. While the experts are agreed that deletion of the swimming pool would resolve the matter, the Applicant did not seek leave to amend the proposal to delete the pool and so the matter must be considered. State Environmental Planning Policy No.55 – Remediation of Land applies to this site, and s7 requires that: (1)  A consent authority must not consent to the carrying out of any development on land unless: (a)  it has considered whether the land is contaminated.

48. The Applicant submits a Geotechnical Assessment (Exhibit A, Tab 11) that identifies the original shoreline is likely to have been setback around 12m from the current seawall, and which states that “There could be significant depth of fill behind the seawall adjacent to Darling Harbour. This will certainly contain sizable pieces of rock”.

49. On the evidence before me, I consider it unlikely that the fill in the Lease Lot area, intended as the site of the swimming pool, is contaminated. Further, as the application does not involve a change of use for the subject site, the provisions of Cl.7 (2) of SEPP 55 are not enlivened and a report specifying the findings of a preliminary investigation of the land is not required.

Application for exception to development standard

50. As already stated, the Respondent’s planning expert, Ms Benger is of the opinion that the Applicant has calculated the floor space ratio (FSR) incorrectly by omitting the garage, stairwells and part of the lower boathouse as gross floor area and, that as a result, the correct floor space ratio for the application exceeds the maximum floor space ratio permitted by Clause 4.4 of the LLEP. This view is supported by drawing A6000 Rev B – Area Plans that does not include these spaces in the calculation of areas shown shaded.

51. Ms Benger believes that the area of the garage should be considered in the gross floor area, given the definition of gross floor area, found in the dictionary of the LLEP, excludes car parking to meet any requirements of the consent authority (my emphasis). As the LLEP contains no requirement for parking, it is reasonable that the area of the garage be included in the calculation of FSR.

52. The written request states that the maximum FSR for the site is 0.7:1, which equates to a gross floor area of 572.95 square metres, and states that the proposed FSR is 0.75:1, which equates to a gross floor area of 613.95 square metres. As such, the proposal seeks consent to exceed the FSR development standard applicable under the LLEP by 7.1%.

53. The Council did not press the exceeding of the FSR as a contention, however as the Applicant submitted a written request in relation to the exceedance (Exhibit K), the Court must be satisfied that the request adequately justifies a contravention of the development standard by addressing both;

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and

• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

54. In exercising the functions of the consent authority on appeal, the Court has the power to grant development consent to the development even though the development would contravene the FSR standard. However, the applicant bears the responsibility to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (Initial Action)).

55. The common ways in which an applicant may demonstrate that compliance with a development standard is unreasonable or unnecessary are found in Initial Action at [17]-[21].

56. The applicant’s written request asserts that the objectives of the development standard are achieved notwithstanding the non-compliance for the following reasons:

• The proposal minimises any overshadowing, loss of privacy and visual impacts for the neighbouring properties consistent with the objectives of this clause.

• The proposal is within the maximum allowable height of buildings as it presents to the street and waterfront.

• The bulk and scale of the proposal is considered to be consistent with the desired character of the locality and the surrounding buildings and public areas will continue to receive satisfactory exposure to sky and sunlight.

• The proposal provides an appropriate built form and land use intensity consistent with the objectives of Clause 4.4 of the LLEP.

• A significant amount of the gross floor area is located below ground in basement areas where it adds no bulk to the building.

• The proposal provides for a suitable balance between built form and landscaping and includes a complying landscaped area and site coverage.

57. The relevant objectives of the development standard, found in cl.4.4 of the LLEP, are as follows;

(a) to ensure that residential accommodation:

(i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and

(ii) provides a suitable balance between landscaped areas and the built form, and

(iii) minimises the impact of the bulk and scale of buildings,

58. The Applicant’s written request asserts that there are sufficient environmental planning grounds to justify a flexible approach to the application of the FSR controls for the following reasons;

• That a compliant building would unnecessarily restrict the circulation and linking of the whole of the building form in order to achieve the FSR control while providing a less desirable heritage outcome.

• That the resulting accommodation within the building benefits from high levels of amenity, solar access and outlook.

59. I am not satisfied that the applicant’s written request to contravene the FSR control has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) of LEP 2015 for the following reasons;

1. The proposal includes the rebuilding of the Clifton Street frontage at a dimension of 980mm higher than the original building. In my view, this can not be said to meet the objectives of cl.4.4 as it does not minimise the impact of the bulk and scale of buildings. I am not satisfied that a more skilful design would not provide the Applicant with the same development potential and amenity while reducing the impact on the views of neighbours.

2. The Applicant argues that the increase in height of the building is a result of floor levels in the replacement building being raised to achieve a freeboard clearance as required by the NCC. In my view, that argument fails on the following grounds;

• The site is not identified as a Flood Control Lot by the Leichhardt Flood study Final Report, and so the floor level controls in Part E Water of the DCP do not apply.

• In the Applicant’s submissions, freeboard is described as the vertical height set above flood level to protect a habitable floor from inundation (Exhibit 6, page 22). The freeboard clearance is proposed as a space below the level 4 slab (shown variously at RL 13.68 and RL13.80 on the plans). However, habitable floor area is shown directly below this area, comprising Bedroom 4, gym, ensuite and laundry and so it is questionable as to whether the freeboard clearance as described by the Applicant is consistent with Figure 25 on which the applicant relies (Exhibit 6, page 22).

3. I am not satisfied that internal circulation and linking of the whole of the building form can not be achieved within the bounds of the FSR control contained in Cl.4.4 while providing a desirable heritage outcome. As it is currently proposed, the internal circulation contained in the application proposes the demolition of walls and other original building fabric from the 1840’s cottage and that is identified as being of an ‘exceptional’ level of heritage significance by Dr Warr.

4. The current proposal comprises new gross floor area on Level 3 consisting of Bedroom 4, a gym, ensuite and laundry that can only be achieved by the demolition of the Clifton Street portion of the heritage item, and so represents FSR that is within the control of the Applicant to amend to comply with the LLEP.

60. It is my considered opinion that the applicant's cl 4.6 written request does not satisfactorily demonstrate that there are grounds to contravene the FSR control in cl 4.4 of the LLEP standard. However, in the event that the written request by the Applicant could be considered to satisfy the provisions of cl. 4.6, I now seek to address aspects of the application identified by the Respondent as the principal area of disagreement.

The demolition of the heritage item to protect from flooding

61. The primary dispute between the parties in this matter relates to the impact of stormwater on the site, and whether stormwater and related issues warrant the demolition of the Clifton Street portion of the heritage item.

62. The Applicant’s heritage expert, Mr Davies, states on a number of occasions that his support for demolition of the Clifton Street frontage is premised on the Court finding that the matter of overland flow can not be resolved without the lifting of the floor levels, and the reconfiguration of the dwelling. Put simply, Mr Davies lends his support to the demolition of the Clifton Street frontage on the basis that the stormwater inundation requires such modification to the heritage item that it would significantly compromise the heritage significance of the item, and that a replacement building ‘in the memory of the former house’ would be an appropriate alternative.

63. The evidence of the stormwater experts suggests that reasonable alternatives are available to the Applicant to dispose of water on the site in a manner that would retain and protect the heritage item, including the provision of drainage in the sunken verandah area, and the removal of existing planter beds that appear to impede the flow of water to Clifton Lane. As a result, I am not satisfied that the matter of overland flow necessitates the demolition of the Clifton Street portion of the heritage item.

64. In my view, it is not unreasonable for the Applicant to provision for some water to enter the site during extreme weather events, and for the Applicant to be expected to take some action to make safe the heritage item as a part of the scale of development proposed in the application. Put another way, it may be considered unreasonable for the Applicant not to provide for drainage on the site following a detailed site-specific analysis of the conditions.

65. In relation to the proposed demolition of the Clifton Street frontage, and some internal walls in the original 1840’s cottage comprising the heritage item, Section C1.2 Demolition of the DCP is relevant, although not determinative of the matter:

…

Control C3

In determining development applications for the demolition of a Heritage Item or a building in a Heritage Conservation Area, Council will consider the following:

a). heritage status of the building and its context as outlined in:

(i). the Statement of Significance of the Heritage Item or building in a Heritage Conservation Area as outlined in the relevant Council heritage study or expert opinion;

…

d). options for the conservation of the existing building under current controls;

…

f). the quality of the proposed replacement building and its fit with the Heritage Conservation Area in terms of scale, materials, details, design style and impact on streetscape.

I now consider the provisions of the DCP in relation to the likely effect of the proposed development on the heritage significance of the item or area, pursuant to 5.10 of the LLEP.

The statement of significance or expert opinion

66. The Statement of significance is found in the Leichhardt Heritage Inventory (contained in Exhibit 10) and states:

No.14 Clifton Street is of high local historic, aesthetic and scientific significance as a waterfront development that is now rare as it retains evidence from its initial development in c.1844, and subsequent development in the 1880’s and early decades of the 20th century. The western building presents as a Victorian Italianate house that makes a positive contribution to the eastern end of Clifton Street and surrounding narrow lane and walkway. The eastern building is a Federation period structure with Arts and Craft details that despite some alternatives is a visible feature on the waterfront. The site retains evidence that reveals information about the early use and development of the local area.

67. The Recommended Management of the heritage item includes, relevantly, that:

The two storey form, scale and character of the western building addressing Clifton Street including hipped roof form and chimneys, rendered and dressed stone facades and ground floor verandah including remnant cast iron posts be retained and conserved.

68. The Applicant provided an expert opinion, prepared by Dr Anne War which included comments on the Statement of Significance, and a schedule of Significance of components. The opinion, contained in the Applicant’s Statement of Heritage Impact (SHI), dated 28 October 2017 (Exhibit A) identified numerous elements that were intrusive. Relevantly, the SHI prepared by Dr Warr was accompanied by images and plans that related to an earlier proposal for the site that is not before the Court, but showed a building fronting Clifton Street with matching height and proportions to the existing Clifton Street frontage and containing a notation “Outline of existing Clifton Street structure”.

69. While Dr Warr’s expert opinion, contained in the SHI, appears well researched, given it does not relate directly to the application before the Court and is premised on a rebuilding of the Clifton Street frontage in matching dimensions and form – and not in the form now proposed - I accept and prefer the evidence contained in the Statement of Significance (Exhibit 10, Tab B).

70. The Applicant also provided an expert opinion, prepared by Mr Stephen Davies, dated 14 September 2018 (Exhibit D) which relies on Dr Warr’s opinion contained in the SHI. For the same reasons stated previously, I accept and prefer the evidence contained in the Statement of Significance (Exhibit 10, Tab B)

Options for the conservation of the existing building

71. The Applicant submits that in achieving their desired outcomes for the site, there will be an impact on the heritage significance of the item and on the Heritage Conservation Area. The application before the Court is founded on the premise that the inundation of the site by overland water flow is so significant, and the options to engineer a solution to the problem are so limited that the Applicant is of the view that a portion of the existing building can not be conserved.

72. In support of this view, the Applicant tendered a plan at 1:50 scale (Exhibit H) that showed that a new stair access to the existing Clifton Street entrance would be required, and in such a configuration as would limit head height clearance to the existing verandah roof, and presumably requiring its removal.

73. In my view, the Applicant has preferred the path of demolition over the partial or considered removal of building elements that could achieve the conservation of a part or parts of the existing building, while being complemented with a contemporary approach such as that entertained by the heritage experts.

The quality of the proposed replacement building

74. The Applicant contends that the application is consistent with DCP C1.4 Heritage Conservation Areas and Heritage Items, Objective 01 (i);

New buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter.

75. The Applicant submits that the final built design has been carefully drawn to recall aspects of the existing item, and so the rebuilding of the Clifton Street frontage can be regarded as sympathetic.

76. The Respondent submits that it is the proposed demolition of the Clifton Street frontage that forms the major point of disagreement and that changes could be made by the Court taking an “amber light” approach (as described in Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096), and to approve the remainder of the application. I decline to do so as the demolition of the Clifton Street frontage appears to be integral to the provision of new floor area shown on the level below, and to the location of stairs and lift circulation, and so can not be isolated from the proposal as a whole.

Conclusion

77. Having considered all of the evidence, it is my view that the heritage item is capable of being retained and protected with the proper integration of drainage strategies on the site such as the removal of planter beds, the provision of additional drainage pits and the like. A combination of improved drainage on site, modest increases to the hob fronting Clifton Street and modification of the floor level within the entrance hallway, would permit the heritage item to be retained.

78. The proposed partial demolition of the heritage item fronting Clifton Street is contrary to the objectives of the heritage conservation clause, at sub-cl 5.10(1)(a) and (b) of LLEP, to conserve the environmental heritage of Leichhardt, and the heritage significance of heritage items, including associated fabric, settings and views.

79. Given my findings that demolition is contrary to the objectives of the heritage conservation clause of LLEP, I do not need to determine further contentions.

Orders

80. The Court orders that:

1. The appeal is dismissed.

2. Development Application No. DA 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain East is refused.

3. The exhibits, other than Exhibits A, B, K, 1 and 7 are returned.

_____________

T Horton

Commissioner of the Court

Decision last updated: 31 January 2019