Munro v Inner West Council

Case •

[2020] NSWLEC 1240

•

01 July 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Munro v Inner West Council [2020] NSWLEC 1240
Hearing dates: 20-21 April 2020
Date of orders: 01 July 2020
Decision date: 01 July 2020
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the application and rely upon the amended plans listed in Condition 3 of Annexure ‘A’.

(2) The appeal is upheld.

(3) Development consent is granted for Development Application No. D/2019/154 for the demolition of existing structures and construction of a new four-storey dwelling house with new pool and double garage at rear, and associated works, including new fencing and landscaping works, subject to conditions of consent at Annexure ‘A’.

(4) All Exhibits are returned, except for Exhibits A, T, V and 9.

Catchwords: DEVELOPMENT APPLICATION – heritage conservation area – Birchgrove Distinctive Neighbourhood – building bulk, form and scale – building location zone – view loss
Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy,(March, 2020)

Land and Environment Court of New South Wales, Photomontage Policy

Leichhardt Development Control Plan 2013

New South Wales Office of Environment & Heritage, Assessing Heritage Significance, (18 November 2015)

Category:Principal judgment
Parties: Andrew Munro (First Applicant)
Sari Munro (Second Applicant)
Inner West Council (Respondent)
Representation:

D Briggs (Solicitor) (Applicants)
S Turner (Solicitor) (Respondent)

Solicitors:
DG Briggs & Associates (Applicants)
Inner West Council (Respondent)
File Number(s): 2019/247856
Publication restriction: No

Judgment

  1. COMMISSIONER: Andrew and Sari Munro are the owners of No 64 Birchgrove Road, Balmain (“the site”) who now bring an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), against the refusal by the Inner West Council (“the Respondent”) of Development Application No. D/2019/154 seeking consent for the demolition of existing structures and construction of a new four-storey dwelling house with new pool and double garage at rear, and associated works, including new fencing and landscaping works.

Approach to the proceedings

  1. The matter was listed for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (“LEC Act”) on 20 April 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (“Pandemic Policy”) on the Court’s website.

  2. Consistent with the Pandemic Policy, the Court arranged a telephone mention with the parties on 2 April 2020 at which the parties consented to the hearing proceeding by telephone, and the Court directed that, in the event the conciliation is terminated, parties should file detailed opening submissions, and to provide cross-examination bundles to the Court and the relevant experts.

  3. The conciliation conference commenced on 20 April 2020 by telephone. While objector submissions were contained in materials provided by the Council prior to the proceedings, marked Exhibit 2, the Court also heard from a neighbour, Ms Linda Forbes of No 66 Birchgrove Road by telephone at the commencement of proceedings.

  4. The parties were able to resolve a number of matters prior to the proceedings as a result of experts conferring, and during the conciliation that further narrowed the matters in dispute. However, agreement was not reached on all of the issues in contention. Consequently, I terminated the conciliation conference pursuant to s 34AA(2)(b)(i) of the LEC Act and proceeded forthwith to a hearing.

  5. At the commencement of the hearing, the parties consented to material discussed during the conciliation conference to be relied on in proceedings in accordance with s 34(12) of the LEC Act.

  6. At the conclusion of the proceedings, the Court directed that closing submissions should be provided in writing as follows:

  • Applicants’ written submissions (“AWR”) to be filed 24 April 2020

  • Respondent’s written submissions (“RWS”) to be filed 30 April 2020

  • Applicants’ written submissions in reply (“AWSR”) to be filed 4 May 2020

The site and its context

  1. The site is legally described as Lot B in DP 322268, having a frontage of 7.635m to Birchgrove Road and a depth of 43.33m when measured at the north-eastern boundary, resulting in a total site area of 326.6m2.

  2. The site falls steeply to Gow Lane at the rear, with a change in level that is said to be 5.7m in the Statement of Facts and Contentions marked Exhibit 1. The survey (Exhibit E) appears to show a fall of 5.29m at the north-western boundary and 5.6m along the north eastern boundary.

  3. The rear yard is largely concrete hardstand in the form of terraces which step down to the rear of the site to two existing outbuildings at the rear boundary.

  4. The site is not listed for its heritage significance, but the existing dwelling is a timber-framed cottage on brick piers with Art Nouveau-style timberwork brackets to the front verandah and within the Iron Cove Heritage Conservation Area (“Iron Cove HCA”).

  5. The existing building adjoins semi-detached dwellings that are listed for their local heritage significance pursuant to Schedule 5 of the Leichhardt Local Environmental Plan 2013 (“LLEP”) at Nos 66 and 68 Birchgrove Road.

  6. Furthermore, the site is also in the vicinity of the following heritage items:

  • “Lilywill”, including interiors at 54 Birchgrove Road, Balmain (I131);

  • House, “St Kilda”, including interiors at 75 Birchgrove Road, Balmain (I134);

  • House, including interiors at 77 Birchgrove Road, Balmain (I135);

  • Single terrace, including interiors at 79 Birchgrove Road, Balmain (I136); and

  • Birchgrove Public School, including interiors at 76B Birchgrove Road, Birchgrove (I521).

  1. The Court was assisted by a number of still photographs, numbering around 120 separate images, prepared by the Applicants’ that were used as reference throughout the proceedings. These were entered as Exhibit T.

  2. Additionally, 4 video files, also in Exhibit T, were prepared by the Applicant. Three were viewed by the parties, and the Heritage and Planning experts in unison prior to the expert evidence. The videos are titled as follows:

  • Birchgrove Road walk with numbers rendered.mp4 (duration: 1 minute, 45 seconds)

  • Front of 64 Birchgrove Road.mp4 (duration: 49 seconds)

  • Gow Lane walk with numbers.mp4 (duration: 1 minute, 17 seconds)

  • The fourth video that was not viewed in unison, is titled “64 Birchgrove Road site walk.mp4” (duration: 8 minutes, 41 seconds).

The issues

  1. The background facts of the matter and the contentions as originally pressed by the Respondent are set out in the Statement of Facts and Contentions filed with the Court on 5 September 2019 (Exhibit 1).

  2. At the commencement of the hearing, the Applicants sought leave, unopposed, to rely upon amended plans that reflected discussions held during the conciliation conference and were later marked Exhibit A.

  3. The amended plans were supported by 5 images depicting 3D modelling of the proposal that were marked Exhibit S.

  4. The amendments may be summarised as follows:

  • Amended hipped roof form comprising 2 bedrooms and a bathroom, with two dormer windows to the rear roof plane at Level 2 of the proposal.

  • A further setback of 1260mm from the rear of the site at Level 1.

  • A further setback of 350mm from the rear of the site at Ground floor level.

  1. As a result of the amended plans, the remaining contentions may be summarised as follows:

  • The proposal fails to conserve the heritage significance of the Iron Cove HCA, and will result in adverse impacts on the heritage items in the vicinity and in terms of heritage conservation and the desired future character of the area.

  • The proposed building siting, height and bulk is unacceptable, inconsistent with the desired future character of the area and results in adverse heritage, streetscape and amenity impacts.

  • The proposal is unacceptable because the proposed floor space of the development exceeds the maximum floor space ratio (“FSR”) development standard in the LLEP and results in adverse impacts to the heritage conservation area in terms of building bulk, form and scale and does not minimise the impacts of the bulk and scale of buildings.

  • The proposal does not achieve the minimum landscaped area required by the LLEP.

  • The proposal fails to provide an acceptable level of amenity, in terms of visual and acoustic privacy, visual bulk and views, for neighbouring properties.

  • The proposal is not in the public interest based on public submissions received, amenity impacts, tree impacts, overdevelopment, excessive bulk and scale, and adverse streetscape and heritage impacts.

  1. The matters raised in public submissions are largely addressed by the contentions but may be summarised as follows:

  • Adverse impact due to a loss of view to the Parramatta River.

  • Excessive excavation is likely to create nuisance and compensation should be provided.

  • The proposed development is in excess of the FSR and is out of keeping with the area.

  • The bulk and scale will result in a loss of natural/ambient light.

  • The proposed double garage is likely to increase traffic movements in Gow Lane and further degrade the laneway surface and Council should resurface the lane.

  1. Given the range of matters originally in dispute, the Court was assisted by expert evidence in Town Planning, Heritage, Traffic and Arboriculture.

  • For the Applicant, Mr Greg Patch (Heritage), Mr Kim Burrell (Town Planning), Mr James Brodie (Traffic), and Ms Catriona Mackenzie (Arboriculture).

  • For the Respondent, Mr Sinclair Croft (Heritage), Mr Eltin Miletic (Town Planning), Mr Sean Howie (Traffic), and Mr Jim Limberiou (Arboriculture).

  1. The experts conferred and prepared joint reports that were marked as follows:

  • Joint expert traffic report (Exhibit 3)

  • Joint expert arboricultural report (Exhibit 4)

  • Joint expert heritage report (Exhibit 5)

  • Joint expert planning report (Exhibit 6)

  1. Prior to the hearing, and in accordance with the directions of the Court made on 2 April 2020, the parties prepared cross-examination bundles prior to the expert evidence heard by telephone. The experts, on oath, attested to their physical location and to the fact that they were alone during the giving of their evidence.

  2. While the contentions are set out at [20] in the order as they appear in the Statement of Facts and Contentions, the Respondent contends that the Court’s power to grant consent is constrained by a pre-condition to the exercise of that power, being the contravention of the maximum FSR at cl 4.4 of the LLEP, and non-compliance with the landscaped area at cl 4.3A of the LLEP.

  3. However, as the proposed development relies upon the demolition of an existing structure which the Respondent contends should be prevented by operation of cl 5.10(4) of the LLEP, I must consider the heritage contention first as the breaches of the FSR and landscaped area controls only arise if I find that there are grounds on which to demolish the existing building.

  4. That said, consideration of the heritage contention is also referrable to provisions contained in the Leichhardt Development Control Plan 2013 (“LDCP”) which themselves necessitate an assessment of the proposed replacement building.

  5. For this reason, while I will commence with a consideration of the heritage contention, I cannot be satisfied that there are grounds to demolish the existing building, unless I consider the proposed replacement building which brings into consideration the breach of the FSR and landscaped area controls by the proposed replacement building

  6. Furthermore, as the objectives of the FSR control requires consideration of landscape matters, the breach of the latter forms an essential element in an assessment of the former.

  7. Therefore, the correct approach is to commence with consideration of the heritage contention, before embarking upon an assessment of the breach of the FSR control, requiring a consideration of the landscape control, so as to reach a conclusion on the FSR control, before concluding an assessment of the heritage contention as first embarked upon.

Planning framework

  1. The site is within the R1 General Residential zone, according to the LLEP in which dwelling houses are permitted with consent and wherein the objectives of the zone are in the following terms:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

  1. Clause 2.7 of the LLEP provides that the demolition of a building or work requires development consent.

  2. As the site area is 326.6m2, a minimum landscaped area of 20% applies to the site, as set out in cl 4.3A of the LLEP, as follows:

4.3A Landscaped areas for residential accommodation in Zone R1

(1) The objectives of this clause are as follows—

(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b) to maintain and encourage a landscaped corridor between adjoining properties,

(c) to ensure that development promotes the desired future character of the neighbourhood,

(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e) to control site density,

(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

(2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential.

(3) Development consent must not be granted to development to which this clause applies unless—

(a) the development includes landscaped area that comprises at least—

(i) where the lot size is equal to or less than 235 square metres—15% of the site area, or

(ii) where the lot size is greater than 235 square metres—20% of the site area, and

(b) the site coverage does not exceed 60% of the site area.

(4) For the purposes of subclause (3)—

(a) the site area is to be calculated under clause 4.5 (3), and

(b) any area that—

(i) has a length or a width of less than 1 metre, or

(ii) is greater than 500mm above ground level (existing),

is not to be included in calculating the proportion of landscaped area, and

(c) any deck or balcony or the like (whether enclosed or unenclosed) is not to be included in calculating the site coverage if—

(i) it is 2.4 metres or more above ground level (existing), as measured from the underside of the structure and the area below the structure is able to be landscaped or used for recreational purposes, or

(ii) the finished floor level is 500mm or less above ground level (existing).

  1. The effect of cl 4.4(2B)(b)(iii) of the LLEP is that the site, having an area of greater than 300m2 but less than 400m2, has an applicable maximum FSR of 0.8:1 which the parties are agreed is exceeded by the proposal.

  2. As the site is within the Iron Cove HCA, the provisions of cl 5.10 apply and are in the following relevant terms:

(1) Objectives The objectives of this clause are as follows—

(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,

…

(2) Requirement for consent Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

…

(iii) a building, work, relic or tree within a heritage conservation area,

…

(e) erecting a building on land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

…

(4) Effect of proposed development on heritage significance 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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

…

  1. The Applicants’ Statement of Environmental Effects (Exhibit D) records that the site is Class 5 Acid Sulfate Soil in accordance with cl 6.1 of the LLEP and is within 500m of Class 2 land, requiring consent if the land is below 5m Australian Height Datum, and is likely to lower the water table by 1m on adjacent land. The site is not below 5m and I am satisfied, given the scale and nature of the development proposed, will not lower the water table by 1m.

  2. Clause 6.4 of the LLEP has the objective, at subcl (1), to minimise the impacts of urban stormwater on the site and on adjoining properties, native bushland and receiving waters. Consent must not be granted, under subcl (3), 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.

Leichhardt Development Control Plan 2013

  1. Demolition of a Heritage Item, or of a building in a Heritage Conservation Area is subject to Part C1.2 of the LDCP, which is in the following terms:

“Objectives

O1 To enhance the environmental performance, cultural significance and character of the area by encouraging good management of existing buildings.

O2 To ensure that heritage items or buildings in a Heritage Conservation Area are only demolished where they cannot be reasonably retained or conserved.

O3 To ensure that where demolition of a Heritage Item or buildings in a Heritage Conservation Area is deemed appropriate, that the replacement building: a. meets the desired future character of the area; b. is compatible with the apparent subdivision pattern; and c. is consistent with the objectives contained in the Leichhardt Local Environmental Plan 2013 and this Development Control Plan.

O4 To retain existing buildings that contribute to the desired future character of the area.

Controls

C1 Council will not approve a development application for the demolition of:

a. a Heritage Item; or

b. a building in a Heritage Conservation Area that contributes positively to the conservation area; or

c. a building that makes a positive contribution to the desired future character of the area

Unless:

i. the existing building is found to be structurally unsafe; and

ii. cannot be reasonably repaired; and

iii. the proposed replacement building is consistent with the development controls contained in Leichhardt Local Environmental Plan 2013 and this Development Control Plan; and

iv. the quality of the proposed replacement building will be compatible with the Heritage Conservation Area or streetscape in terms of scale, materials, details, design style and impact on streetscape.

Heritage Items or buildings in Heritage Conservation Areas

C2 A development application for the demolition of a Heritage Item or building in a Heritage Conservation Area must be lodged with Council and be accompanied by the following information:

a. statement of significance of the item (significance of the item itself and the significance of the Heritage Conservation Area in which it is located (if applicable); PART C – 8

b. a report or statement which identifies and explains the current structural condition of the building. The report is to be prepared by a qualified structural engineer or building surveyor and is to address:

i. structural adequacy of the building;

ii. options for the building to be made structurally safe through rectification/remediation works;

iii. options for the conservation of the building;

c. details of the proposed replacement building, including the proposed elevations, materials, detail, design style and compliance with the development controls contained in the Leichhardt Local Environmental Plan 2013 and this Development Control Plan.

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;

b. the contribution that the existing Heritage Item or building in a Heritage Conservation Area makes to the heritage significance of the Conservation Area by virtue of its age, scale, materials, details, design style or intactness;

c. the structural adequacy of the existing building;

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

e. consistency of the proposed replacement building with the development controls contained in Leichhardt Local Environmental Plan 2013 and this Development Control Plan, including those relating to amenity impacts on surrounding properties;

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.”

  1. As the site is within the Birchgrove Distinctive Neighbourhood, the LDCP sets out the landform, existing character and desired future character objective and controls at Section 2.2.2.6.

  2. Section 3.2 Site Layout and Building Design provides, relevantly:

“Background

This element outlines objectives and controls for building siting, scale and form.

Objectives

O1 To ensure adequate separation between buildings for visual and acoustic privacy, solar access and air circulation.

O2 To ensure the character of the existing dwelling and/or desired future character and established pattern of development is maintained.

O3 To ensure that buildings are constructed within an appropriate Building Location Zone (BLZ) from the front and rear boundary to protect neighbourhood features such as streetscape, private open space, solar access and views.

…

Building Location Zone

C3 Building Location Zone (BLZ) is the part of the subject site where it can be reasonably expected that a building can be located. The BLZ is determined by having regard to only the main building on the adjacent properties. The location of front fences or intervening walls, ancillary sheds, garages, external laundries, toilets or other structures on the site is not relevant in determining the BLZ. In order to respect the pattern of development and amenity of neighbouring properties, the BLZ is determined on a floor by floor basis (refer to Figure C128: Building Location Zone).

Figure C128: Building Location Zone

C4 Development shall be located within the BLZ area of the subject site. BLZ for the main building, shall be determined having regard to that part of the building that is fully enclosed by walls, however open-sided structures such as balconies and verandas may extend beyond the BLZ so determined, where they are consistent with similar structures on adjoining properties.

…

C6 In the event of any proposed variation to the BLZ the onus is on the applicant to demonstrate that the proposed building is consistent with the pattern of development in the immediate locality (usually taken as the same street) and that:

a. amenity to adjacent properties (i.e. sunlight, privacy, views) is protected and compliance with the solar access controls of this Development Control Plan is achieved;

b. the proposed development will be compatible with the existing streetscape, desired future character and scale of surrounding development;

c. the proposal is compatible in terms of size, dimensions privacy and solar access of private open space, outdoor recreation and landscaping;

d. retention of existing significant vegetation and opportunities for new significant vegetation is maximised; and

e. the height of the development has been kept to a minimum to minimise visual bulk and scale, as viewed from adjoining properties, in particular when viewed from the private open space of adjoining properties.

Side boundary setbacks

C7 Building setbacks shall comply with the numerical requirements set out in the side boundary setback graph (refer to Figure C129: Side Boundary Setbacks Graph).

C8 Council may allow walls higher than that required by the side boundary setback controls above, to be constructed to side boundaries where:

a. the development is consistent with relevant Building Typology Statements as outlined within Appendix B – Building Typologies of this Development Control Plan;

b. the pattern of development within the streetscape is not compromised;

c. the bulk and scale of development is minimised by reduced floor to ceiling heights;

d. the potential impacts on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised; and

e. reasonable access is retained for necessary maintenance of adjoining properties

Landscaped open space

C9 Development shall:

a. include soft landscape area in both the front and rear of the site where consistent with the BLZ controls;

b. ensure that the area of soft landscaping is consolidated to support significant landscaping and tree planting; and

c. include landscaped open space as part of private open space at the rear of the site. Landscaped areas are to be designed to incorporate privacy, solar access, protection from the wind and so that the amenity of adjoining properties as well as the streetscape is retained.

…

C13 The Distinctive Neighbourhood controls provide the applicable building envelope for each area and also give an indication of the general height, form and roof form of buildings in the area. This building envelope should be applied with regard to the prevailing circumstances of the surrounding development.

C14 In addition to the information given in the Suburb Profiles, it is important to consider the following aspects of surrounding development in relation to the proposal:

a. ridge heights;

b. eaves heights;

c. roof form and pitch;

d. side setbacks;

e. proportion of the street frontage covered by the building elevation; and f. any articulation of the front elevations.

C15 The building envelope defines the maximum potential volume of a development above ground level. It applies to the following part of the building: a. the whole area defined by external walls; and b. includes covered areas such as verandahs and balconies (but does not include open decks and paved areas).

C16 The envelope has two height components:

a. a wall height; and

b. a roof control comprising of an inclined plane at 45 degrees from the top of the wall height.

Notes:

The building envelope is to be applied in conjunction with laneway envelopes. The building envelope is to be applied to street frontages whereas laneway envelopes are to be applied to laneway frontages.

i. For the purposes of determining a building envelope, wall height does not always relate to the actual height of the front building wall, as shown in the diagrams on the next page. Combined with the roof control, the wall height is simply a means of setting an appropriate height at the front elevation and hence controlling the overall bulk of a building. On a sloping site, wall height shall be measured from several points along the building to provide an average height and split-level solutions must be applied.

ii. The roof control applies 45 degree inclined planes to significant (eg street) elevations of the building to permit compatible roof forms. The inclined plane also encourages the use of traditional building elements such as verandahs and balconies, which would assist in minimising the bulk of front elevations, presenting a smaller roof line at street level. Normally the height of a development including wall height and roof form should not exceed the ridge heights of adjoining development. Minor architectural details such as chimneys, dormer windows, gables and sub-gables can penetrate the envelope.

…

C17 The overall maximum height in storeys shall generally not exceed the height in storeys of the main building on adjoining sites, except where those buildings are uncharacteristic of the general pattern of development in the same street or as set out in the Suburb Profile, in which case, consideration will be given to that general pattern.

C18 New development shall generally correspond with both the wall height and the roof height of the average of two adjoining developments, making allowance for topographical variation in the elevation of those buildings.”

  1. Part C3.10 of the LDCP contains the following objectives and controls in relation to Views:

“Objectives

O1 Protect vistas and views from the public domain.

O2 Recognition of the value of existing views from private dwellings and allow for the reasonable sharing of views between private properties.

Controls

C1 New development should be designed to promote view sharing (i.e. minimise view loss to adjoining and adjacent properties and/or the public domain while still providing opportunities for views from the development itself).

C2 Design solutions must respond graphically to the site analysis outcomes through the use of plans, elevations, photographs and photomontages to demonstrate how view sharing is to be achieved and illustrate the effect of development on views. In some cases, reasonable development may result in the loss of views, but new development must not significantly obstruct views.

C3 Development shall be designed to promote view sharing via:

a. appropriately addressing building height, bulk and massing;

b. including building setbacks and gaps between buildings;

c. minimise lengthy solid forms;

d. minimise floor to ceiling heights and use raked ceilings in hipped / gabled roof forms where appropriate, especially in upper floors;

e. splay corners; and

f. use open materials for balustrades, balconies, desks, fences, car ports and the like”

  1. Part C3.11 of the LDCP contains objectives and controls relating to visual privacy which is an issue in the dispute, particularly in relation to No 66 Birchgrove Road.

Is the existing building a contributory item?

  1. Mr Croft considers that as the existing timber-framed building on the site is consistent with the period of development in the Iron Cove HCA set out in the Statement of Significance, it can be said to contribute to the significance of the Iron Cove HCA.

  2. Furthermore, it is a modest example of a dwelling not usually found in the Inner West and is more commonly associated with semi-rural land divisions in Sydney’s west. Given the rarity of the example, and its positive contribution to the streetscape, the dwelling should be retained and incorporated as part of the proposal. Additionally, the building may be considered to satisfy Criterion (f): History: Uncommon, Rare or Endangered Aspects of the “Assessing Heritage Significance” guidelines published by the NSW Office of Environment and Heritage.

  3. In further support of his position, Mr Croft believes the terms of the general management of the heritage values in the HCA, at [50], anticipates little change other than modest additions and discrete alterations and as the heritage values applicable to the area advise that all pre-1939 buildings, especially weatherboard buildings, should be retained, the existing building should not be demolished but repaired, and adapted in any future development.

  4. Details of particular note include the timber brackets visible at the front of the cottage and internal timber fretwork to an archway, according to Mr Croft.

  5. In the alternative to Mr Croft’s opinion that the cottage is rare, Mr Patch cites evidence of four additional ‘fibro’ cottages that are similar in scale and style within the immediate locality, in Rowntree Street and Turner Street. The internal fretwork is not visible from the public domain and the brackets are likely to have been a later embellishment, are nothing special, and are still available for purchase today.

  6. Furthermore, an Assessment of Significance report, prepared by Mr Patch, appended to the Joint Report (Exhibit 4), concludes that there is no criterion under the “Assessing Heritage Significance” guidelines satisfied by the existing building.

  7. The Statement of Significance for the Iron Cove HCA is contained as an appendix to the Statement of Heritage Impact prepared by Mr Greg Patch for the Applicant, dated March 2019 (Exhibit H) and is as follows:

“• One of a number of conservation areas that collectively illustrate the nature of Sydney’s early suburbs and Leichhardt’s suburban growth particularly between 1871 and 1891, with pockets of infill up to the end of the 1930s (i.e. prior to World War II). This area is important for illustrating development particularly from 1870s–1910s, and this forms the major element of its identity, with later pockets of infill prior to World War II (i.e. pre-1939).

• Through the route of its main access roads, demonstrates the subdivision sections, closely related to the landform, drawn up by Surveyor Langley for the sale of Gilchrist’s Balmain grant after 1852.

• Illustrates through its irregular small street layout, and varied allotment width and length (within a limited range), the many different groups of speculators and subdividers involved in the development of the area.

• Through the materials of its outer masonry walls, demonstrates the rapid advances in brick making in the Sydney area over the period 1870s–1910s.

• Through its now rare weatherboard buildings it continues to demonstrate the nature of that major construction material in the fabric of early Sydney suburbs.”

  1. The heritage values identified for the Iron Cove HCA are, relevantly:

“Management of Heritage Values

Generally

This is a conservation area. Little change can be expected other than modest additions and discrete alterations. Buildings which do not contribute to the heritage significance of the area may be replaced with sympathetically designed infill.

…

Retain

…

• All pre-1939 buildings and structures, especially weatherboard buildings.”

  1. Mr Patch is of the opinion that the existing building is an example of a ‘ready-cut’ cottage manufactured by George Hudson Limited that was typical in the period ranging from 1913 to the 1950’s, but was most probably built between 1931 and 1938, although this is uncertain as there is no record in the Sands directory of the time.

  2. Due to the topography on the site, and an expedient approach to its siting to avoid additional cost and complexity, the existing cottage is low lying when viewed from Birchgrove Road and so cannot be said to make a contribution to the streetscape. Instead, it is akin to a ‘missing tooth’ when considered between properties that are 2-storey according to Mr Patch.

  3. Mr Patch questions whether the cottage is an intact example as a right-hand turn to the entry off the front verandah is not consistent with the George Hudson design in the available catalogues. Additionally, the original timber-framed windows have been replaced with aluminium framed windows, the bathroom and kitchen have been refurbished, and the chimney has been shortened.

  4. According to an Asbestos Survey prepared for the Applicants’ (Exhibit M), the existing building is clad in asbestos, and is not timber weatherboard. The relevance of this is that the building cladding, linings and other features are of an age that require removal on public health grounds. To Mr Patch, this raises questions as to what, if any, heritage value would remain after such comprehensive intervention.

  5. In his oral evidence, Mr Croft accepts that the building is clad in asbestos and acknowledges that human health is a priority that warrants the removal of the cladding but that is only one component of the building that would otherwise be retained.

  6. The Applicants’ also submit a Structural engineer’s report prepared by R Balas Consulting on the condition of the existing cottage (Exhibit N) as required by Section C1.2, Control C2 of the LDCP. Mr Patch considers the scope of rectification work to be so extensive that the heritage value of the building would be lost, while Mr Croft is of the view that the works are reasonable and repairable.

Findings

  1. Section C1.2 of the LDCP sets out the assessment to be used in determining development applications for the demolition of a building in a heritage conservation area.

  2. For the reasons that follow, it is my preliminary view that the existing building is not a contributory item in the Iron Cove HCA:

  1. there is sufficient doubt as to the particular date of construction of the cottage that would, in my view, support the Applicants’ submission that the cottage is an ‘off the shelf’ product of generic origin built sometime later than the period identified as the major element of significance in the Iron Cove HCA, and;

  2. there is evidence that a further 4 ‘fibro’ cottages are in close proximity, and;

  3. due to its modesty, and the steeply inclined topography of the site, the cottage substantially and abruptly departs from the, albeit mixed, rhythm of the streetscape resulting in a void and not a presence or address to Birchgrove Road, and;

  4. as there is consensus that the original materials are a public safety risk, I consider the scale of replacement required to make it safe would remove whatever rarity it can be said to possess. Coupled with Mr Croft’s preference for adaption of the existing building, in my view, it is not likely to retain a character that is discernible to its origins.

  1. However, as Section C1.2(f) of the LDCP requires an assessment of the proposed replacement building in determining an application to demolish a building in a heritage conservation area, I will now consider the proposed building in the Exhibit A plans.

The proposed replacement building

  1. The proposed development exceeds the FSR permissible under cl 4.4(2B)(b)(iii). For this reason, I must first consider the written request seeking to justify the contravention of the relevant standard in order to enliven the Court’s power to grant consent.

The proposal exceeds the FSR

  1. According to Mr Burrell who prepared the written request, marked Exhibit V, in accordance with cl 4.6 of the LLEP, the amended plans at Exhibit A result in an FSR of 0.984:1. Drawing DA-100 (Exhibit A) states the FSR to be 0.98:1 however I accept Mr Burrell’s statement that the architect, Mr Nick Bell, had rounded down.

  2. Relevantly, after the close of proceedings, the Applicants’ advised the Court of an error in the tender of Exhibit V. On 27 April 2020, the Applicants’ stated the error in the following terms:

“Variation 1: Page 8: “Lower ground floor”

Under the sub-heading “Lower ground floor” on p8 of Exhibit V, the second paragraph (a single sentence) reads:

Coincidentally, the GFA of the lower ground-floor level is equivalent to the total noncompliance with the standard.

In the correct version of the Clause 4.6 which the applicants seek to rely upon, the corresponding sentence/paragraph reads:

The GFA of the lower ground-floor level is 8.58m2 more than the total non-compliance with the standard.

Variation 2: Page 9: “The attic”

Under the sub-heading “The attic” on p9 of Exhibit V, the first paragraph (a single sentence) reads:

The attic has a 43.6m2 GFA which is equivalent to 14% of the total GFA or 72% of the total non-compliance.

In the correct version of the Clause 4.6 which the applicants seek to rely upon, the corresponding sentence/paragraph reads:

The attic has a 43.6m2 GFA which is equivalent to 14% of the total GFA or 73% of the total non-compliance.”

  1. On 5 May 2020, the Respondent confirmed that there was no objection to the substitution of the corrected document as Exhibit V.

  2. I accept the Applicants’ written submissions that the error was inadvertent, and that there is no change in the actual calculations and no supplementation or additional substantive arguments made in connection to correcting the error (AWSR, p15).

  3. The objectives of the FSR standard, at cl 4.4 of the LLEP provide, relevantly:

(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,

…

  1. Clause 4.6 of the LLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.4 of the LLEP, but that power is subject to conditions.

  2. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

  1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)),

  2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),

  3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and

  4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

  1. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that:

  1. the Applicants’ written request has adequately addressed the matters required to be demonstrated by subcl (3); and

  2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

  1. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act but should still consider the matters in cl 4.6(5) of the LLEP (Initial Action at [29]).

  2. In support of the proposal, the written request states that, for the reasons set out below, compliance with the development standard found in cl 4.4 of the LLEP would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard.

  3. In relation to the first objective at cl 4.4 of the LLEP, seeking compatibility with the desired future character of the area in relation to building bulk, form and scale:

  1. The steep fall from the footway on Birchgrove Road to Gow Lane is around 7.5m, resulting in a streetscape to Birchgrove Road that is generally characterised by two-storey masonry buildings with a ground floor at, or just below, the level of the street, and a rear that projects out of the ground to avoid excavation in to rock, forming a subfloor area that adds to bulk but does not comprise gross floor area (“GFA”). This is the case with adjacent buildings at Nos 66 and 68 Birchgrove Road, and No 62 Birchgrove Road where the land at the frontage appears to have been filled.

  2. The result is that while existing masonry buildings present a significant bulk to the rear and large side walls, dwellings at Nos 62 and 66 Birchgrove Road have an FSR well below the maximum permitted of 0.5:1 and 0.42:1 respectively. Furthermore, No 66 Birchgrove Road is in its original form, and is without garaging to the rear lane which would contribute to GFA, if built. This is in contrast to No 68, which is also a listed for its local heritage significance, but which has a rear building addition dating from 2010, and garaging and so represents a comparable form to that proposed. In particular, No 68 Birchgrove Road, which Council records as having an FSR of 0.92:1, should be considered when deriving a Building Line Zone (“BLZ”) for the subject site.

  3. The proposed development responds to the built form of surrounding buildings, but uses excavation and a pitched roof form to appropriately accommodate space on the site while addressing Birchgrove Road in a two-storey frontage. The result is a scale consistent with its context.

  4. The exceedance of the FSR can be said to derive from the garage, the lower ground floor and the attic at Level 2 of the proposal which are addressed as follows:

  1. The provision of a garage, comprising a GFA of 35.8m2, is a reasonable expectation that provides off-street parking serviced by a rear lane and is consistent with similar structures on Gow Lane.

  2. The lower ground floor comprises a GFA of 68.6m2, is substantially below the existing ground level, and is only visible at the rear elevation. The level is not visible from the public domain and its removal would not demonstrably change the building envelope other than to adversely affect the presentation to Birchgrove Road.

  3. The attic level has a GFA of 43.6m2 and the written request maintains that it is entirely within a roof space that sits comfortably in the overall aesthetic of the development as it forms an acceptable transition between Nos 62 and 66 and is of a similar depth or length to roofs on adjoining properties.

  1. Also relevant to the first objective is that the proposed development is consistent with the desired future character of the locality as described in the LDCP in the following ways:

  1. The building form responds to the topography and to the scale of development in Birchgrove Road which is mixed, but is primarily two-storey in height and so preserves the rhythm of the streetscape.

  2. A balance is said to be achieved between landscape and built form, although it does not comply with the relevant numerical standard, and a written request is provided to justify the contravention of the landscaped area control, which I consider further at [73]-[89].

  3. While the demolition of the existing cottage will not preserve the single-storey form, style or materials, that is due to the need to remove asbestos and to achieve contemporary living standards in a manner that is consistent with the prevailing character of the street.

  4. The proposed fencing treatment to Birchgrove Road, and the garage and vehicular access to Gow Lane are both consistent with properties in the immediate vicinity.

  5. The proposed wall height to Birchgrove Road, and proposed materials and finishes are consistent with the character of the streetscape and comply with the relevant control.

  1. In relation to the second objective to provide a suitable balance between landscaped areas and the built form, the proposal complies with the maximum site coverage at cl 4.3A(3)(b) of the LLEP.

  2. However, it does not comply with the numerical standard for landscaped area at cl 4.3A(3)(a)(ii) of the LLEP which requires a minimum landscaped area of 20%, or 65.32m2, and so a written request seeks to justify the contravention of the standard.

  3. The request, prepared by Mr Burrell, is found within the written request prepared in relation to the exceedance of the FSR at Exhibit V, and addresses the balance between landscape and built form required to be achieved in order to conform to the objective at cl 4.4 of the LLEP.

  4. Mr Burrell adopts the method of calculation set out at cl 4.3A(4) of the LLEP which excludes areas that are built up greater than 500mm above the existing ground level to derive a figure of 32.14m2 (Exhibit 6, Attachment 5) in the rear yard, and an overall total of 38.3m2.

  5. The request to vary the landscape standard is based, firstly on the change in levels of the rear yard which provides for landscaping that is not currently evident on the site due to the existing concrete terracing and, secondly, on the landscape drawings at Exhibit B which are said to provide a superior result compared to the existing conditions.

  6. The proposal is for perimeter planter beds and plantings that introduce valuable amenity, and provides for the introduction of canopy trees in the rear yard in a manner that is consistent with adjoining sites and the local character.

  7. Strict compliance with the numerical standards in the landscape area control is unreasonable or unnecessary in the circumstances of the case as the post-development conditions will provide for landscaping opportunity that the site does not currently sustain, and so can be said to achieve the objectives of the standard notwithstanding the non-compliance.

  8. The objectives of cl 4.3A are in the following terms:

4.3A Landscaped areas for residential accommodation in Zone R1

(1) The objectives of this clause are as follows—

(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b) to maintain and encourage a landscaped corridor between adjoining properties,

(c) to ensure that development promotes the desired future character of the neighbourhood,

(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e) to control site density,

(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

  1. The written request justifies the contravention of the standard by seeking to demonstrate compliance with the objectives of the landscaped area control as follows:

  1. The proposal provides areas in the front and rear yard for substantial tree and mid-storey planting.

  2. The proposal will encourage a landscaped corridor between properties by the removal of the existing concrete terracing and fill with soil of more than 500mm in depth which is required to achieve planting depth but which is excluded from the calculation by operation of the control.

  3. The area of rear yard to be filled and the defined landscaped area provided total 17.5% which could be brought into compliance with the removal of the swimming pool that could otherwise be approved under a complying development certificate without a requirement to satisfy the landscaped area control.

  4. The proposed rear landscaping is consistent with the rear landscaping evident at No 68 and No 60 Birchgrove Road, which share a similar layout comprising swimming pool and terrace at the level of the rear living areas, and so is considered to promote the desired future character of the neighbourhood.

  5. The removal of the existing concrete terracing to the rear yard will maximise the retention and absorption of water and minimise the obstruction of underground water flow by providing new area of deep soil landscaping while demonstrating a building footprint that is generally consistent with the pattern of development in the locality.

  1. The reasons stated to constitute sufficient environmental planning grounds for the non-compliance are as follows:

  1. The infill proposed generally reflects ground levels likely to have been in place prior to the excavation of the rear yard, and provides a level that is consistent with neighbouring backyards.

  2. The non-compliance is partly attributed to the swimming pool which could otherwise be approved under a complying development certificate without a requirement to satisfy the landscaped area control.

  3. The removal of an expansive impervious area such as the concrete, and replacement with areas of deep soil assists in water retention and underground flow, and reinstates the likely levels prior to excavation.

  1. I am satisfied that, in relation to the non-compliance of the proposal with the landscaped area control at cl 4.3A of the LLEP, the written request adequately addresses the matters required to be demonstrated in accordance with cl 4.6(3)(a) and (b) for the reasons set out in the request.

  2. In particular, I accept that the concrete terracing is likely to be overlaid on bedrock (Exhibit V, p11) and so would likely require further excavation to provide for deep soil suitable for substantial tree planting, and to promote a landscape corridor and adequately provide for water retention absorption as an alternative to the proposed infill to create an area of deep soil.

  3. Given the steep fall in the topography from Cardwell Street and across the length of the site, such excavation would likely obstruct underground water flow and yet result in no change to the building footprint or density proposed.

  4. I also accept the proposed landscape layout adopts the pattern evident in Nos 60, and 68 Birchgrove Road with the variation being a greater proportion of softscape proposed by the Applicant.

  5. Finally I note Mr Miletic’s oral evidence that a qualitative assessment of the landscaped area, taking into account the condition proposed by the Applicants’ to reduce the terrace area to provide for greater deep soil, is acceptable and is superior to the landscaped area at No 68 Birchgrove Road other than the visual bulk of the boundary fence to No 66 Birchgrove Road which was subsequently amended by production of drawing DA-960 in the AWSR on 4 May 2020.

  6. I am also satisfied that the development the subject of the written request is in the public interest as it is consistent with the objectives of cl 4.3A of the LLEP and with the objectives of the R1 zone because:

  1. Firstly, as it is not inconsistent with the zone objectives which seek to provide for housing needs of the community, and provide for diversity in housing types.

  2. Secondly, as the landscape layout is similar to the pattern evident in more recent development at Nos 60 and 68 Birchgrove Road, I consider the approach to be compatible with the character emerging in the immediate vicinity.

  1. I do not consider the non-compliance to raise any matter that would preclude the Secretary’s concurrence from being assumed and so I accept the written request made pursuant to cl 4.6 of the LLEP in relation to landscaped area, which satisfies me that the proposed development achieves an appropriate balance between landscape and built form, being the second objective of cl 4.4 of the LLEP.

  2. Objective 3 of cl 4.4 of the LLEP seeks to minimise the impact of the bulk and scale of buildings, which the Applicants’ submit is achieved as the building form is consistent with neighbouring dwellings, and its context. In particular, the front elevation to Birchgrove Road is consistent with the rhythm of building forms in the street.

  3. The Respondent contends the proposed development fails to conform to the BLZ, side setbacks and building wall heights, and the required building envelope, which are clearly intrinsic to the first and third objective of the FSR control.

  4. In my view therefore, I must now consider these contentions in order to form an opinion in accordance with cl 4.6(3)(a) of the LLEP as to whether the written request has demonstrated that the contravention of the FSR control is justified.

The Building Location Zone is disputed

  1. The proper application of the Council’s building siting controls in relation to the BLZ is disputed by the heritage experts. To the front setback, Mr Croft prefers the bay window fronting Birchgrove Road to be further setback as it is more than half of the width of the proposed front façade while Mr Patch considers the bay window to be forward to the primary front wall and Council permits certain protrusions.

  2. The planning experts are generally agreed that the front setback is acceptable as shown. In his oral evidence, Mr Miletic and Mr Croft also accept the rear building line of the proposal matches the rear of No 62 Birchgrove Road due to the amendments contained in the Exhibit A plans. That said, Mr Miletic maintains that as the proposal does not relate appropriately to No 66 Birchgrove Road, the BLZ is not consistent with Figure C128 at [40] and so proposes a variation, and the onus is on the Applicants’ to demonstrate consistency with the pattern of development in the immediate vicinity.

  3. Drawing DA-201 depicts the elevations of the proposed development, and overlays the form of Nos 62 and 66 Birchgrove Road. Drawing DA-952 depicts the layout and the location of setbacks at each storey for Nos 60-68 Birchgrove Road.

  4. Section 3.2, Objective 03 of the LDCP seeks to ensure that buildings are constructed within an appropriate BLZ to protect neighbourhood features such as streetscape, private open space, solar access and views.

The proposed BLZ minimises the impact of the bulk and scale

  1. In my view, consideration of the BLZ, and the third objective at cl 4.4 of the LLEP, to minimise the impact of the bulk and scale of buildings, are interrelated. The impact of the bulk and scale of the proposal, according to the Respondent, is in the view loss to No 66 Birchgrove Road which results from the location of the building setback to the rear that Ms Forbes submits will block views enjoyed from a Juliet balcony at No 66 Birchgrove Road to Elkington Park and Snapper Island.

  2. In the Statement of Environmental Effects (Exhibit D, p21), Mr Burrell states that the proposal imposes no unreasonable impact on public or private views. The Applicants’ rely upon a view analysis prepared by Mr John Denton (Exhibit Q) to provide a photomontage of the existing and proposed, taken from the Juliet balcony at No 66 Birchgrove Road.

  3. Mr Briggs accepts the view of water may be described as iconic, and that part, or all of the view to Elkington Park and Snapper Island may be lost. However, the view is from a side boundary, taken at around midway into the site and is a side view across the property at No 64 Birchgrove Road.

  4. The Respondent submits that as the Court cannot be certain that Exhibit Q has been prepared in accordance with the Court’s Photomontage policy, I should give less weight to the view analysis. Furthermore, as the Court and the experts did not physically attend the property owned by Ms Forbes, the Court should give particular consideration to the potential for view loss from the property.

  5. I have considered the photographs contained in Ms Forbes’ submission. I confirm that Ms Forbes agreed with me during her oral submission that an image contained in her written submission (Exhibit 7, Folio 000016) was incorrectly captioned, and that her concern relates to the view lost to the left, and not to the right, of the palms depicted in that image.

  1. The palms are located in the rear yard of Ms Forbes’ property and serve as a useful reference point in a number of the images relied upon in this matter.

  2. The palms are again visible in the image used as the basis of the photomontage, later marked Exhibit U, along with a Jacaranda tree at the rear of No 62 Birchgrove Road, and two buildings in the distance that were referred to during proceedings. One was identified as having a “rusted roof”, and the other as having “two chimneys”. Together, these landmarks provide a number of identifiable reference points.

  3. I have considered the survey, marked Exhibit E which shows the relative level of the Juliet balcony. The view analysis states that the sightline is taken at RL RL40.85 or 1500mm above the level of the Juliet balcony at RL 39.35.

  4. I am advised by the Applicants’ that the focal length of the camera lens is 50mm in accordance with the Court’s Photomontage policy. I have also considered an image provided by Ms Forbes at Exhibit 7, Folio 000026 which also features the building with the rusted roof, and the building with two chimneys, taken at a closer field of view, otherwise said to be ‘zoomed in’ on Elkington Park.

  5. The Applicants’ accept that the view analysis does not illustrate the proposed development shown in Exhibit A. As I understand it, this means that the rear setback depicted at Level 1 in Exhibit Q is shown 860mm further into the view shed than is now proposed.

  6. Mr Briggs advised that the author of the view analysis, Mr Denton was unable to provide an updated view analysis in the period between the conciliation when the amendment was made, and the close of the hearing.

  7. I have considered whether the Court should direct that the view analysis be updated. For the reasons that follow, I have concluded that this is not required and would not serve the overriding interests of the Court to facilitate the just, quick and cheap resolution of the real issues in these proceedings:

  1. Firstly, I consider it relevant that the view relied upon in the view analysis is the same view as selected by Ms Forbes, and depicted in her submission. I consider the image used in the view analysis to be strongly similar, if not identical.

  2. Secondly, while the view analysis does not nominate the camera type and field of view of the lens used from which the photomontage has been derived, I am satisfied that the camera position has been located by reference to a survey prepared by a professional surveyor.

  3. Thirdly, the height at which the view is taken appears consistent with the relative levels marked on the survey.

  4. Fourthly, the view analysis locates the position of existing outbuildings on No 64 Birchgrove Road which represents existing surveyed elements that correspond with the same elements in the existing and proposed images, consistent with the Photomontage policy.

  1. For these reasons, I consider the view analysis to be well founded, and deserving of some weight.

  2. I will consider the view loss at No 66 Birchgrove Road before I then continue my consideration of objective 3 of cl 4.4 of the LLEP which seeks to minimise the impact of the bulk and scale of buildings.

  3. Control C3 at Section C2.2.2.6 applicable to the Birchgrove Distinctive Neighbourhood requires development to preserve and, where practicable, enhance public and private views over Snails Bay and Parramatta River.

  4. Section 3.10 Views in the LDCP states, relevantly, that:

“[The Respondent] supports the notion of ‘view sharing’. Development should be designed to minimise view loss to the public and to adjoining and adjacent properties while still providing opportunities for views from the development itself. By its nature, view sharing involves sharing on the part of the affected parties.

…

Council will consider the following steps in the assessment of reasonable view sharing:

a. What views will be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (e.g. Sydney Harbour, Sydney Harbour Bridge, ANZAC Bridge and the City skyline including features such as Sydney Tower). Such views are more highly valued than district views or views without significant landmarks.

b. How are the views obtained and assessed? Views from private dwellings considered in development assessment are those available horizontally to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth).

c. Where is the view enjoyed from? Views enjoyed from the main living room and entertainment areas are highly valued. Generally it is difficult to protect views from across side boundaries. It is also generally difficult to protect views from other areas within a residential building particularly if views are also available from the main living room and entertainment areas in the building concerned. Public views are highly valued and will be assessed with the observer standing at an appropriate point in a public place.

d. Is the proposal reasonable? A proposal that complies with all development standards (e.g. building height, floor space ratio) and planning controls (e.g. building setbacks, roof pitch etc) is more reasonable than one that breaches them.

Objectives

O1 Protect vistas and views from the public domain.

O2 Recognition of the value of existing views from private dwellings and allow for the reasonable sharing of views between private properties.

…”

  1. In considering the private views from No 66 Birchgrove Road, I accept firstly the Applicants’ submission that as the view is a side view, enjoyed over the subject site, and is taken from a position midway in the site, it is a view that is likely to be affected by a fully compliant development on the subject site.

  2. Secondly, on a close reading of the Statement of Significance, Description, and the Historical notes for No 66 Birchgrove Road (Exhibit H, Appendix ii), I do not consider the views to Elkington Park or Snapper Island to be intrinsic to the heritage significance of the property.

  3. Thirdly, it is unquestionable that Ms Forbes will retain a view of the Parramatta River that extends beyond her own property to include a view shed that benefits from a portion of the air space over No 64 Birchgrove or, in other words, a wide view cone will be preserved from No 66 Birchgrove Road that will continue to include Cockatoo Island and its setting in the Parramatta River.

  4. For the reasons set out above, I conclude that the proposed development does not unreasonably impact upon the views of No 66 Birchgrove Road. In arriving at this conclusion, I note that the view analysis does not model the additional setback of Level 1 which will provide a further benefit of 860mm at this level, and which is likely to be discernible from the Juliet balcony.

  5. For the following reasons, I am also satisfied that the BLZ is appropriately determined:

  1. Firstly, I accept Mr Burrell’s oral evidence that No 66 Birchgrove Road is, in effect, the anomaly in the immediate vicinity, and so is uncharacteristic of the general pattern of development within the street. In particular, unlike other properties in Birchgrove Road, No 66 Birchgrove Road has not extended to the rear as would appear to be possible, and which would have an effect on the average of the rear setbacks that is referred to in Control 3 of the LDCP.

  2. Secondly, consistent with Control 3 of the LDCP, I therefore accept that consideration should be given to the general pattern in determining whether to permit a variation to the BLZ that would otherwise be determined based on the adjoining buildings alone.

  3. Thirdly, while I note the Respondent’s submission that No 68 Birchgrove Road may not constitute a preferred development outcome, I consider the rear development, apparently completed in 2010, to be clearly within the visual catchment.

  4. Fourthly, in relation to the form of the Second floor, I accept Mr Burrell’s evidence that the depth/length of the proposed roof form is generally consistent with the roof forms on adjoining properties (Exhibit V, p9) and that the roof height provides an acceptable transition between Nos 62 and 66 Birchgrove Road. This is supported by the survey (Exhibit E) and Drawing-DA-200 which shows the heights of the roofs progressively higher as follows:

  1. No 62 Birchgrove Road – RL 43.840

  2. No 64 Birchgrove Road (proposed) – RL44.970

  3. No 66 Birchgrove Road – RL 45.300

  1. Fifthly, I accept that the Applicants’ submission that the spaces contained within the Second Floor are wholly contained within the proposed roof form, and so can be properly defined as an attic. The LLEP defines ‘attic’ as follows:

attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.

  1. The Respondent, in written submissions, considers the flat roof component of the attic to be a foreign element that is incompatible with the adjoining properties and any reliance on the roof terrace at No 60 Birchgrove Road is misguided given that property is only two storeys, and the feature is alone in the area (RWS, par 7).

  2. Furthermore, the choice of dormer window is not the choice of the Respondent’s experts or Mr Patch for the Applicants’ who prefers an ‘eyelid dormer’ (RWS, par 6). Instead it is proposed by the architect in consultation with the Applicant.

  3. While I may be sympathetic to the critique of the final form of the roof, I note it sits below the level of the ridgeline of the primary roof, and that the flat roof form is not dissimilar to an eyelid dormer such as that discussed at No 60 Birchgrove Road. Moreover, I consider the particular circumstances of the site to be relevant considerations. The 3D modelling at Exhibit S show the attic roof form does not dominate when viewed from the lower sightline in Gow Lane.

  4. Furthermore, the side elevations on drawings DA-201 show the side gable form extends more than 12m from the Birchgrove Road frontage, measured to where the gable meets the horizontal gutter line of the rear wing. In a close reading of the drawings, I conclude that the side gable will largely, if not wholly, obscure a view of the flat roof portion from Birchgrove Road.

  5. For this reason, to the extent that the flat roof could be argued to be incompatible, on balance I consider that portion of the roof that will be visible will be read in a form that is not dissimilar or incompatible to the mix of properties on Birchgrove Road. Furthermore, as it is proposed to be corrugated iron, the material choice is consistent with Control C19 of Section C2.2.2.6.

  6. As a result, I conclude that the views from No 66 Birchgrove Road are appropriately protected as required by Section 3.2, Objective 03 of the LDCP, and, as summarised at [117], I consider the BLZ to be appropriately determined. However, this does not, in my view, fully address conformity with objective 3 of cl 4.4 of the LLEP which seeks to minimise the impact of the bulk and scale of buildings.

  7. Control C15 at Section C2.2.2.6 is applicable to the Birchgrove Distinctive Neighbourhood and states that maximum wall height of 6m applies to the neighbourhood. Figure C133 under Section 3.2 of the LDCP is in identical terms. While the front wall height exceeds the 6m height when measured from inside the boundary, I consider the set down of the building from the street to be a reason to apply the provision flexibly.

  8. Control C8 at C3.2 – Site Layout and Building Design also provides that walls may exceed the side boundary controls where, at (b) the pattern of development within the streetscape is not compromised and, at (d), where the potential impacts on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised.

  9. With reference to the elevations at drawing DA-200, I consider the bulk and scale of the proposed development to be consistent, and so compatible, with the Birchgrove Road streetscape and, for the reasons stated at [116], I am satisfied that the potential impacts on amenity at No 66 Birchgrove Road are appropriately minimised, consistent with Control C3 at Section C2.2.2.6.

  10. Having concluded the above, I can now consider whether compliance with the development standard found in cl 4.4 of the LLEP would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard as initially set out at [65].

  11. In relation to the first objective, I accept that:

  1. The steep fall evident in properties along Birchgrove Road to Gow Lane results in those properties presenting to the rear with large rear and side wall planes, whether or not GFA is contained within. If the GFA was taken up in the larger forms, greater FSR would result, with minimal, if any, change in bulk, form or scale.

  2. The proposal uses excavation and a form of ‘attic’ roof to accommodate area that is compatible with the adjoining and nearby properties. Due to excavation, much of the exceedance of FSR is not visible from outside the site.

  3. While the properties fronting Birchgrove Road are mixed in their form and scale, the proposal adopts a two-storey wall height and pitched roof form that is compatible with the desired future character of the area, and a scale and rhythm that is consistent with its context.

  1. In relation to the second objective, for the reasons set out at [83]-[89], and as the proposal complies with the site coverage control as stated at [73], I am satisfied that the proposal provides a suitable balance between landscaped areas and the built form notwithstanding non-compliance with the FSR control.

  2. Relatedly, I am also satisfied that the removal of the concrete terracing to the rear of the property for the proposed landscaping appropriately maximises the use of water permeable surfaces on the land, and on the basis of the Stormwater plans (Exhibit C), will avoid adverse impacts from stormwater runoff in accordance with cl 6.4 of the LLEP.

  3. In relation to the third objective, for the reasons set out at [113]-[126], I am satisfied that the written request demonstrates that the bulk and scale has been minimised notwithstanding non-compliance with the FSR control.

  4. On this basis, I can be satisfied that the objectives of the FSR control are achieved notwithstanding the non-compliance with the numerical standard contained at cl 4.4 of the LLEP in accordance with cl 4.6(3)(a) of the LLEP.

  5. Next, the Applicants’ written request in relation to cl 4.4 of the LLEP relies upon the following environmental planning grounds:

  1. in relation to the bulk, form and scale of the proposal being compatible with desired future character of the locality, the proposal is:

  1. compliant with the site coverage requirement;

  2. generally consistent with the Council’s building siting controls in relation to building location zone; and

  3. provides a building envelope generally consistent with the controls and it is also consistent with the building envelope of adjoining buildings.

  1. The proposal is in keeping with the bulk, scale and mass of surrounding development.

  2. The proposal provides for an excellent amenity of the future occupants of the development consistent with the aims of the LLEP.

  3. The proposal does not result in any unreasonable amenity impacts on adjoining and nearby residential properties.

  4. The proposal will result in the safe demolition and removal a dwelling largely constructed of asbestos fibro, in accordance with industry standards.

  1. For the reasons already summarised, I am satisfied there are sufficient environmental planning grounds to justify the contravention of the FSR control for the reasons set out in the written request. In particular:

  1. For the reasons summarised at [116], I am satisfied that the exceedance of the FSR control does not impose unreasonable amenity impacts on adjoining or nearby properties.

  2. For the reasons summarised at [117], I am satisfied that the exceedance of the FSR control does not prevent the proposal from being sited appropriately in relation to building location zone.

  3. For the reasons summarised at [126], I am satisfied that the bulk and scale of the proposed development to be consistent, and so compatible, with the Birchgrove Road streetscape. Consistent with this view I also consider the proposal conforms to Controls set out in the LDCP for the Birchgrove Distinctive Neighbourhood as follows:

  1. Preserves the established setbacks for each street (Control C2).

  2. Where a consistent pattern of architectural style and form exists, preserve this consistency on each street (Control C6).

  3. Maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials (Control 8).

  4. Fences should be low open picket style with iron or timber pickets and with metal timber or stone posts (Control C10).

  5. New development shall maintain the use of hipped, pitched or gabled roof forms and designs shall be complementary to the existing unadorned built form. Flat roofs may be appropriate where the style of architecture is contemporary and view lines may be affected (Control C18).

  6. Building materials used shall be consistent with the existing character of the streetscape, including rendered and painted surfaces and roof materials such as corrugated iron as well as timber windows (Control 19).

  7. Development visible from the water is to be designed to preserve the conservation values of the area. When viewed from the water, a balance between built form and landscape is to be achieved/maintained through side setbacks and landscaping. Additionally, the rear elevation must be designed so it does not detract from the form, character and scale of the conservation area. The amount of glazing to solid ratio on the rear elevation must be sympathetic to the immediately surrounding development (Control C21).

  1. Finally, I am also satisfied that the proposed development is in the public interest as it is consistent with the objectives of the FSR control, and the objectives of the zone set out at [31]. Furthermore, given the particular circumstances of the topography, and pattern of development in the immediate locality, I am also satisfied that the concurrence of the Secretary can be assumed in accordance with cl 4.6(4)(b).

  2. In arriving at this conclusion, and for the reasons set out at [58](4)], I consider the removal of asbestos from the community to be desirable on public health grounds. On the basis of the Asbestos Survey (Exhibit M), I am satisfied that a methodology for the removal and disposal of the asbestos material has been set out, and decontamination of the site is provided for in proposed conditions of consent, consistent with cl 7 of State Environmental Planning Policy No 55—Remediation of Land.

  3. While a necessary consequence of this is the removal of the building itself, I am satisfied that the building to be removed is not a contributory building in the Iron Cove HCA. Furthermore, I am also satisfied that the quality of the proposed replacement building, and its scale, materials, details, design style and impact on streetscape are a fit with the Iron Cove HCA, and so I can conclude that, in accordance with Section C1.2(f) of the LDCP, the demolition of the existing building on the site is permissible.

  4. For similar reasons, I am also satisfied that the proposed development will not have an adverse effect on the Iron Cove HCA, as required by cl 5.10(4) of the LLEP, and does adversely impact views to or from Parramatta River beyond what may be expected of a compliant development on Birchgrove Road in accordance with the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

Proposed conditions of consent

  1. At the conclusion of the hearing, the parties were directed to confer and settle on agreed conditions of consent. The Applicants’ filed proposed conditions with the Court on 24 April 2020, and appended drawing DA-960 to the AWSR on 4 May 2020 confirming the set out of the boundary fence to No 66 Birchgrove Road.

  1. The RWS, filed with the Court on 30 April 2020, did not contest the proposed conditions.

  2. The conditions, at Condition 3, contain a list of drawings prepared by Nick Bell Architects that are dated 20.04.2019. Clearly these drawings, generally marked Revision B, were in fact prepared for the hearing on 20 April 2020 and are the same as those for which leave was granted at [17].

  3. The conditions also contain notes marked ‘Applicants’ Remarks’ that should not remain in the final conditions of consent.

  4. The conditions at Exhibit R were the subject of some cross examination of Mr Croft by Mr Briggs for the Applicants’ during the proceedings. The result of which is that agreement was reached on a number of matters the subject of conditions that were resolved by the amended plans, and so are no longer applicable.

Directions

  1. For the reasons already stated, I have determined that the development the subject of the development application warrants the grant of consent. However, in order for the Court to be satisfied that the application to which consent is to be granted is absent of ambiguity, the Court directs that within 14 days of these orders:

  1. the relevant architectural drawings listed in Condition 3 are to be corrected for the date of their revision and filed with the Court.

  2. the parties are to agree the final form of the conditions on the following grounds:

  1. the Applicants’ proposed conditions are generally to be adopted, and filed with the Court, with all Applicants’ Remarks to be removed,

  2. the Respondent’s Advisory Notes are to remain, as the information contained therein may assist those executing the works,

  3. the Internal Referral contained on pages 25 and 26 of Exhibit 8 serves no purpose and is to be removed.

Addendum made on 24 June 2020

  1. In accordance with my directions at [144], the Applicant filed with the Court the following plans and other documents on 17 June 2020:

  • Amended plans in response to directions at [144(1)].

  • The Applicant’s proposed draft conditions of consent in word in response to directions at [144(2)].

  1. As a result, and in accordance with my findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent, pursuant to s 4.16(1)(a) of the EPA Act.

Orders

  1. The Court orders that:

  1. The Applicant is granted leave to amend the application and rely upon the amended plans listed in Condition 3 of Annexure ‘A’.

  2. The appeal is upheld.

  3. Development consent is granted for Development Application No. D/2019/154 for the demolition of existing structures and construction of a new four-storey dwelling house with new pool and double garage at rear, and associated works, including new fencing and landscaping works, subject to conditions of consent at Annexure ‘A’.

  4. All exhibits are returned, except for Exhibits A, T, V and 9.

………………………….

T Horton

Commissioner of the Court

Annexure A (273294, pdf)

Plans (967552, pdf)

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Amendments

01 July 2020 - See Addendum at [145]-[147].

01 July 2020 - Correction made to the Coversheet

Decision last updated: 01 July 2020

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