Morrison v Leichhardt M C and Conventus v Leichhardt M C
[2004] NSWLEC 195
•4 May 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Morrison v Leichhardt M C and Conventus v Leichhardt M C [2004] NSWLEC 195
PARTIES:
Morrison Design Partnership Architects (Applicant)
Conventus Pty Ltd (Applicant)
Leichhardt Municipal Council (Respondent)
CASE NUMBER: 10928 & 11445 of 2003
CATCH WORDS: Development Application
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
CORAM: Bly C
DATES OF HEARING: 06/04/2004
DECISION DATE: 04/05/2004
LEGAL REPRESENTATIVES
APPLICANT
Ms M L Taylor, solicitor
SOLICITORS
Taylor Kelso
RESPONDENT
Mr J Walsh, solicitor
SOLICITORS
Pike Pike and Fenwick
JUDGMENT:
8
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10928 of 2003 and
11445 of 2003
Bly C
4 May 2003
Morrison Design Partnership Architects
Coventus Pty Ltd
Applicants
v
Leichhardt Municipal Council
Respondent
Judgment
These two appeals relate to:
Development Application No. D/2002/905 for alterations and additions to the existing freestanding single storey dwelling including a new single car basement garage and first floor level at 34 Smith Street, Rozelle.
Development Application No. D/2002/692 for the demolition of the existing garage and part demolition of the existing single storey dwelling and the construction of a new two storey dwelling with a single car garage at 36 Smith Street, Rozelle.The two sites at Nos. 34 and 36 Smith Street are occupied by an existing cottage and a detached garage. Number 34 comprises a rectangular shaped site with an area of about 218 m2. The adjoining No. 36 is also rectangular in shape with an area of about 221 m2.
The locality
3. The locality in which the site is located consists of a mixture of single storey cottages and two-storey terraces. The immediately adjacent houses on the western side of the street are small single storey workers cottages. There is a row of two-storey terrace houses opposite the site on the eastern side of Smith Street.
Statutory provisions
The sites are zoned Residential under Leichhardt Local Environmental Plan 2000 ("the LEP") in which zone the proposals are permitted with development consent. They are also located within a conservation area and in the vicinity of several items of environmental heritage. Relevantly applicable development standards in the LEP are a maximum floor space ratio of 0.7:1 (cl 19(2)) and minimum landscaped area of 40% of the site area, 25% of which must be on natural ground suitable for deep planting (cl 19 (3)).
Clause 7 (3) of the LEP requires that certain matters be taken into consideration including the general objectives in cl 13 relating to: ecologically sustainable development; building design and character; transport and access; and heritage and conservation. Urban design considerations are contained in cl 15 and housing objectives are contained in cl 17. Other relevant controls in the LEP include cl 16 (7) and (8) which in effect require that consent must not be granted unless an assessment has been made of the likely effect that the proposal will have on the heritage significance of the item and the conservation significance of the area. Relevant heritage and conservation objectives are contained in cl 15.
6. Leichhardt Development Control Plan 2000 ("DCP 2000") contains an extensive array of controls relating to residential development. Controls relevant to this application include: building heights, envelopes and setbacks; building location zone; heritage, conservation and carparking.
Advertising and the council's decision
The application was advertised and submissions were received from residents of the adjoining properties at Nos. 32 and 38 Smith Street. Matters of concern raised in those submissions include:
· excessive bulk and scale,
· overshadowing and loss of sunlight,
· loss of privacy and excessive noise,
· structural impacts,
· loss of parking in the street.The council refused both applications on 22 October 2003 for numerous reasons.
The evidence
The appeal was conducted as an on-site hearing and expert town planning and urban design evidence was given by Mr P Moffitt on behalf of the respondent and by Mr C King on behalf of the applicant. Resident objectors were also given an opportunity to express their concerns particularly during the Court's inspection of their properties.
The issues
A statement of issues containing 10 separate issues and numerous sub-issues was filed and served. As a result of consultations between the parties, changes to the design and agreed conditions of consent issues were essentially reduced to the following:
1. Whether adjoining properties would suffer amenity impacts in terms of loss of solar access and loss of privacy.
2. Whether the proposals could be satisfactorily landscaped.
3. Whether the proposals would have an adverse impact on the streetscape, the conservation area and neighbouring properties by virtue of its design, bulk and scale.
4. Whether the provision of off street carparking would be appropriate
In relation to the aspects of solar access and privacy I have been persuaded by the evidence of Mr King that these would not be of determinative significance taking into account the nature of existing development in the locality.
Landscaping
According to Mr Moffitt 36.4% of the site at No. 34 is available for landscaping compared to the minimum landscaped area requirement of 40% in cl 19 (3) of the LEP. According to the SEPP 1 objection this equates to a deficiency of about 3 m2.
The objection states that the landscaped area development standard is relied on in order to manage development amenity and design impacts by providing a street front landscaped area within setbacks suitable areas for deep plantings and to soften the built appearance of new development. It argues that the landscaping proposal meets these objectives.
Mr Moffitt did not accept that the non-compliance could be justified and in view of other non-compliances such as for space ratio and setback/height controls, adverse impacts were compounded.
Despite Mr Moffitt's concerns I accept that the landscaping as proposed would meet the relevant objectives and that the SEPP 1 objection could be upheld. More generally I am satisfied that the landscaping schemes for both developments would, in the context of the surrounding workers cottages, be satisfactory.
Design, bulk and scale
The two proposals have floor space ratios of 0.89:1 and 0.95:1. Because these proposed floor space ratios exceed the development standard of 0.7:1 in cl 19 (2) of the LEP the applicant has provided objections pursuant to State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1").
The underlying objectives of the standard can be gleaned from the housing objectives in cl 17 of the LEP which relevantly include:
(b) to ensure amenity for the surrounding residents and future residents, the provision and maintenance of solar access, views, private open space and visual and acoustic privacy, and
(c)to provide development standards to ensure that the density and landscaped areas of new housing reflect the existing residential development of the locality. New housing should complement and be compatible with the style, orientation and pattern of surrounding buildings, works and landscaped areas, and
(e)to provide a diverse range of housing in terms of size, type, form, layout, location, affordability and adaptability to accommodate the varied needs of the community, including persons with special needs.
Similar objectives can be found in draft Leichhardt LEP 2000 (Amendment No. 11).
The objections argue that these objectives are met and that compliance with the development standard would be unreasonable or unnecessary in the circumstances of this case. The reasons for this include: the provision of reasonable family living areas within the cottages; there are other developments in the locality which exceed the floor space ratio; the inclusion of garaging within the buildings is appropriate; complying proposals would probably have a similar scale of building when viewed from the street; the additional floor space does not adversely affect the amenity of adjoining properties; and the proposed dwellings have built forms which would be sympathetic to existing development in the locality.
According to Mr Moffitt a survey of neighbouring properties on the same side of the street revealed an average floor space ratio of 0.48:1 unlike the proposals which have significantly greater floor space ratios. Whilst he did not have any data in relation to the floor space ratio of the two-storey terraces on the opposite side of the street he did not accept that these terraces should be used to justify the non-compliances as sought. These terraces are a distinctly different building type from the group of single storey workers’ cottages where the two proposals are located. Moreover they are physically separated from the site by the street, thus having a different relationship.
Mr Moffitt also pointed out that whilst the upper storeys are only partly visible from the street they would nevertheless be visible from surrounding properties at the side and rear. In turn this would have an undue impact on these properties in terms of excessive bulk and scale. They would be seriously out of scale and proportion with the adjacent buildings. In this context he pointed out that there are significant non-compliances with cl B1.2 of DCP 2000 in that the wall heights at the rear are too high for their setbacks. He accepted that the proposed built form was sympathetic in terms of its architectural design but there is simply too much of it, resulting in a significant adverse impact on the locality. He disagreed with the contention that the non-compliance with the standard would enable the provision of a reasonable family living area was a justification for exceeding the development standard.
Mr King did not accept that there would be any adverse impacts resulting from the non-compliances with the floor space ratio on the streetscape or on the neighbouring properties and that the exceedances result in cottage developments with reasonable family accommodation.
Whilst I accept that in terms of the presentation of the proposed buildings in this streetscape, which has conservation significance, would have a satisfactory bulk, scale and design I have not been persuaded that the objections should be upheld. In this regard I have been persuaded by Mr Moffitt's arguments in rejecting the majority of the arguments in these objections. I particularly agree with his argument that the buildings are simply too large in the context of the surrounding workers’ cottages and their importance in the conservation area. The SEPP 1 objection is not well founded and is therefore not upheld.
Car parking
Each of the two proposed dwellings is to have an incorporated single car garage with access off Smith Street. The garage for No. 34 Smith Street is to be provided in a part basement and a new constructed crossover will be required. The garage for No. 36 Smith Street is essentially at ground level with access via an existing crossover.
Two issues arise in relation to these proposed garages: whether the garages themselves and the access thereto would be satisfactory in the streetscape; and whether any off-street carparking should be provided at all in the light of the applicable carparking provisions in DCP 2000.
In relation to the streetscape issue Mr Moffitt explained that very few sites have on-site carparking with footpath crossings. Garages in the front of houses are disruptive elements and are uncharacteristic of existing workers cottages in the street and indeed the conservation area. Footpath and gutter crossings are also uncharacteristic of the streetscape and detract from the heritage character of the conservation area. Mr King disagreed, contending that the garage doors had been designed to blend into the design of the dwellings and would be sympathetic in the streetscape.
In relation to the vehicle crossovers the applicant has agreed to a condition which would require a continuation of the existing bitumen footpath and a stone kerb and gutter to match the existing. I agree that this arrangement would be satisfactory in the streetscape. As for the appearance of the proposed garage door at No. 34 Smith Street I am satisfied that the innovative fold-up door design including timber gates would not be a visually disruptive element in the streetscape. The proposed panel-lift garage door for No. 36 Smith Street subject to appropriate detailing, even though not entirely appropriate, would not be critically disruptive of the streetscape.
Clause B1.3 Car Parking of DCP 2000 provides that:
No on-site parking is allowed for single dwellings on one allotment where vehicular crossings disrupt the continuity of the footpath and verges and reduce on-street parking capacity.
Number 36 Smith Street has an existing garage and vehicular crossover and as I have already decided, subject to appropriate reconstruction and materials this crossover would not unreasonably disrupt the continuity of the footpath. I agree that weight can be given to the existence of this garage and crossover and conclude that even though their removal would be to the benefit of on-street parking, its retention would not reduce the existing on-street parking capacity. I would not refuse this application on this basis.
However No. 34 Smith Street has no existing garage and vehicular crossover and the proposal to provide this would, in direct contravention of cl B1.3, reduce on-street parking capacity. It was argued by Mr King that this was justified by the fact that an off-street carparking space would replace an on street parking space maintaining the status quo. I do not accept this argument because the effective privatisation of a public car space, would eliminate the existing flexibility of use as required by cl B1.3. It is also likely as argued by Mr Moffitt that the irregular spacing of crossings which does not coincide with the module of kerbside parking would adversely affect on-street parking. In the circumstances I have not been persuaded that cl B1.3 of DCP 2000 should not be applied.
Orders
For the reasons given above I have decided that these development applications should not be approved. The orders of the Court are therefore:
1.The appeals are dismissed.
2.(a)Development Application No. D/2002/905 for alterations and additions to the existing freestanding single storey dwelling at No. 34 Smith Street, Rozelle, is determined by the refusal of development consent.
(b)Development Application No. D/2002/692 for the demolition of the existing garage and part demolition of the existing single storey dwelling and the construction of a new two storey dwelling at No. 36 Smith Street, Rozelle, is determined by the refusal of development consent.
3.Exhibits C and D are retained.
_______________
T A Bly
Commissioner of the Court
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