MSP Architects v Leichhardt Municipal Council

[2006] NSWLEC 487

Land and Environment Court

of New South Wales

CITATION:

MSP Architects v Leichhardt Municipal Council [2006] NSWLEC 487

PARTIES:

APPLICANT
MSP Architects

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10450 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Alterations and additions to workers cottage, conservation area, impact on streetscape, floor space ratio, home studio

LEGISLATION CITED:

State Environmental Planning Policy No. 1
Development Control Plan 2000
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

14/07/2006

EX TEMPORE JUDGMENT DATE:

07/14/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Woodward, solicitor
SOLICITORS
PricewaterhouseCoopers Legal

RESPONDENT
Ms E Rankin, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

14 July 2006

10450 of 2005 MSP Architects v
Leichhardt Municipal Council
JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 This is an extempore judgment. This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Leichhardt Municipal Council’s refusal of a development application for alterations and additions to an existing cottage, and for alterations and additions to the studio building at the rear of the site.

2 The subject site is known as 60 Cecily Street, Lilyfield, and it also has rear lane access. The site is located on the eastern side of Cecily Street between the intersections of Brockley Street and O’Neill Street. Cecily Street is a narrow residential street that falls with a slope from north to south.

3 From the site inspection it could be seen that there is a clear stepping down of the slope in topography. The character of the area is in the vicinity of a heritage conservation area, although there was evidence to the Court in terms of the actual boundary of the heritage conservation area and at the end of the day it seems that the heritage conservation area does not include the subject site. Nonetheless there are other provisions within council’s planning regime that in fact clearly envisage that workers cottages, or cottages be retained where possible.

4 The proposed development before the Court is one that provides for elevating the existing cottage, or jacking the existing cottage up to provide sufficient area or room to allow a basement or ground floor living area to take advantage of the slope of the site. The ground floor would then provide access to the rear yard, the rear yard being between the studio on the laneway and the existing dwelling house.

5 The proposal also provides for a large attic area with a main bedroom and ancillary facilities for the subject dwelling. The rear studio, as it is called on the plans, home studio, provides for a garden store area, two car garage, and an upstairs office component with a kitchenette and bathroom. There is also shown on the plans a bath and other uses at the end of the verandah.

6 The Court had the opportunity of understanding the context in which the cottage sits in its streetscape, and also in terms of its relationship to the adjoining conservation area.

7 The matter commenced as an On Site Hearing, and the Court heard evidence from local residents. It is noted that there is support for the proposed development, although it is also noted in the bundle that there are a number of submissions that expressed concern about over-development of the site, and the car parking situation within the local area.

8 The main issues in the matter relates to the jacking up of the dwelling house and its impact on the streetscape, the FSR of the proposed development, and the use of the home studio. It is noted in council’s Local Environmental Plan that home based employment is a permissible use with consent in the zone, is not an as of right, but a permissible use with consent subject to a development application.

9 The council’s controls, or planning regime, include the Leichhardt Town Plan of 2000, and the accompanying Development Control Plan 2000. These are comprehensive documents which provide guidelines to applicants in terms of development, and also in terms of providing a description of the desired character and existing character of areas broken down into precincts.

10 The council’s controls also provide guidelines in terms of home based employment, that is to guide the development of home based employment and occupation in a manner that is compatible with residential areas. This is an application that I must consider in the context of council’s controls, and it is a prospective approval in terms of the development of the site.

11 Evidence was given to the Court by Mr Andrew Smith on behalf of the applicant, and evidence was provided by the Court-appointed expert, Mr Robert Moore, in terms of the heritage impact of the proposed development.

12 On the site I gave preliminary findings, and that provided the applicant with the opportunity of submitting amended plans. On site I indicated that the Court’s preliminary views are that the proposed development, with the deletion of the attic, was a satisfactory development in the streetscape, and in this regard the Court made a number of observations. Ms Rankin for the council has provided a summary of the Court’s preliminary findings, and I will state these for the record now that is a summary of the preliminary findings that I made on the on-site hearing.

13 It was submitted on behalf of the applicant that the studio at the rear was existing and therefore the Court should focus on the front dwelling. I indicated that one cannot isolate the elements on the site, and if one took such an approach it would lead to cumulative impacts and over development.

14 The Court accepted Mr Moore’s evidence that the building could be raised to provide an under storey area at ground level at the rear. However, the roof form should not be changed as it is an integral element, or part of reading the workers cottage in the streetscape, and the roof as proposed to provide for the third level, would appear contrived, and it would also not respect a stepping down in the streetscape. Clearly raising the existing cottage will change the greater definition of stepping down, nonetheless the Court agrees with Mr Moore that it can be accommodated on the subject site.

15 On the occasion of my preliminary findings I made it quite clear that ‘jacking-up’, or raising the cottage should not be seen as a precedent. Clearly the circumstances of this case are different to many other situations in that the relationship of the existing cottage to the street, that is the footpath, currently requires stepping down, and while raising the cottage will change this relationship, the fact that there is the ability to take advantage of the current stepping down means that the raising up will not be an obvious intrusion in the streetscape. Also the Court has had regard to the fact that the adjoining properties, in particular the one on the lower slope, is a very large dwelling, and the relationship here allows for the stepping up of this cottage to be accommodated while still allowing the topography to be read.

16 In a nutshell the Court was quite clear when it made its preliminary findings that this approval should not be seen as a precedent for the general ‘jacking-up’, or elevating of cottages, within the Leichhardt Municipality. Clearly this workers’ cottages must continue to be read as such, and the retention of the roof form, and the relationship with the ground level and other dwellings in the streetscape in the circumstances of this case allows this to continue. The integrity of the dwelling must be maintained, and I am satisfied that the raising of the dwelling in the circumstances of this case will allow for the integrity of the dwelling to be retained.

17 I should say at this point that the subject dwelling is not a heritage item but demolition of such a cottage could in fact only proceed with council’s approval. However, in my assessment retention of the cottage and the ‘jacking-up’ of the cottage to allow for modern day living without the third level still allows the cottage to be read and fit with the streetscape and this is an appropriate outcome in the circumstances of this case.

18 As I stated earlier, one should not divorce the rear home studio building from the total development of the site. It is important that any approval reflects that the home studio be used only for the purpose of home based occupation facility at the rear, to be used only by residents of the cottage and that only one additional external person is allowed to be employed. The Court considers this is necessary in terms of maintaining the residential amenity of the area, and a home based occupation that is commensurate with such a residential area.

19 The Court also considers that it should be clear that the home based occupation facility at the rear should be advised on the title by s 88 Instrument. This is to alert future purchasers that the use of the studio facility can only be used in conjunction with the primary dwelling house.

20 The Court also considers on further examination of the plans that no shower and bath facilities be provided in the rear building, and that the parking spaces, and the garden store area be within the one large area with access off the rear lane, and that separate access be provided from the lane up to the home based occupation facility, or studio.

21 Therefore amended plans are to be submitted as a deferred commencement for council’s approval. This requires the amended plans to be approved by the council prior to the general conditions of consent. As such a deferred commencement condition has been drafted which the applicant accepts, that requires amended plans to be submitted for council’s approval, and for the drafting of a section 88 Instrument as an additional condition to the consent.

22 The issue of the SEPP 1 objection is a matter that I must refer to as this is a threshold question. In my preliminary findings I identified that the Court in its assessment had regard to the principles, or questions, set out in Winton, a judgment of his Honour Lloyd J, in that the purpose or objective of the standard must be clearly identified, that is to control scale and bulk of developments, and development that is appropriate to its context. I am satisfied with the amendments as proposed, that is as shown in Exhibit J, and the further amendments required in terms of the deferred commencement condition that the proposed FSR which is .81 to 1, will not be out of character with the area and satisfies the objectives of the controls.

23 Clearly the circumstances of this case are that the streetscape is an important matter to have regard to in considering the bulk and scale of development, and the offending point 0.1 that the additional upstairs third level provided was offensive in terms of not satisfying the objectives of the control, however with the deletion of the attic third level I am satisfied that the proposed development is one that will sit comfortably in its context.

24 It could be seen that there are a number of rear studio elements above garages in the area surrounding the subject site, and the proposed development will provide for that facility with the advantage of the rear lane access.

25 It is also important, given the evidence that the Court heard on the view, that the garages be used for the purposes of parking cars and not to be converted for any other purpose, and that the office component be confined to the upstairs area of the rear building.

26 The Court in its assessment of the development application must have regard to the proposed development and use being compatible with the amenity of the residential area. In this regard I do not accept Mr Smith’s evidence that the existing studio should not be considered in the overall assessment of the application in terms of bulk and scale. Yes, the existing rear building is one that is to be utilised in the proposed development, but it must be utilised in such a way that it does not create adverse amenity impacts in terms of the totality of the development of the subject site in the residential area.

27 The landscaped area component satisfies council’s controls. The permeable landscaped area is 109 sq m from a total site area of 322 sq m, and the site landscaped area is some 45 per cent of the subject site.

28 I am satisfied that the proposed development, subject to a deferred commencement for an amended set of plans, and subject to the conditions as agreed to between the parties, is appropriate for approval.

29 Therefore on the basis of my assessment the formal orders of the Court are:

1. The appeal in respect of the property known as 60 Cecily Street, Lilyfield, is upheld.
2. The development application submitted to Leichhardt Municipal Council, and as amended, is approved subject to a ‘deferred commencement’ under s 80(3) of the Environmental Planning and Assessment Act and subject to the conditions contained in Annexure ‘A’.
3. The exhibits are returned with the exception of 2, 14 and J.
4. The Court is to receive the approved set of plans the subject of the ‘deferred commencement’ condition.
Corrigendum:

The section 88 Instrument was incorrectly referred to as a S.88B Instrument and the correct section for this matter is s 88E. Accordingly condition 3 requires a s 88E Instrument.

___________________

J S Murrell
Commissioner of the Court
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