O'Halloran v Leichhardt Municipal Council

[2006] NSWLEC 287

Land and Environment Court

of New South Wales

CITATION:

O'Halloran v Leichhardt Municipal Council [2006] NSWLEC 287

PARTIES:

APPLICANT
Francis and Rosemary O'Halloran

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10952 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Alterations and Additions to existing semi-detached dwelling, site contamination, floor space ratio, overshadowing, heritage impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
State Environmental Planning Policy No 55 - Remediation of Land
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

DATES OF HEARING:

02/05/2006 and 03/05/2006

EX TEMPORE JUDGMENT DATE:

05/03/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks

RESPONDENT
Ms J. Reid, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

3 May 2006

10952 of 2005 Francis and Rosemary O’Halloran v Leichhardt Municipal Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal relates to Development Application No. D/2004/543 for the carrying out of alterations and additions to an existing semi-detached dwelling at No. 9 Simmons Street, Balmain. The works involved include a new attached carport, enclosure of an existing verandah, a first floor extension, alterations to the facades and internal reconfiguration.

2 The rectangular-shaped site comprises Lot A DP 325534 and has an area of about 377 sq m. It falls significantly from Simmons Street towards its harbour frontage. The existing dwelling is one of a pair of brick dwellings comprising Nos. 9 and 7 built in 1906 in a modest Arts and Crafts design style of the Federation period.

3 The locality is developed with a variety of dwelling houses, the predominant form being a mixture or two-storey dwellings with some medium-density development. The adjoining properties at Nos. 11 and 13 Simmons Street comprise substantial two-storey dwellings.

4 The site is situated in the Residential Zone under Leichhardt Local Environmental Plan 2000 (“the LEP”) and in this zone the proposal is permissible with development consent. Relevantly, the property at No. 13 Simmons Street, is a draft heritage item and the adjoining Simmons Street reserve is a heritage item under the LEP. Whilst not listed as such, there was no dispute that the group of properties comprising Nos. 5, 7, 9, 11 and 13 together have heritage significance. The site is also situated within the Balmain Conservation Area and it was not in dispute that the subject property and the surrounding group of properties make a significant contribution to the conservation area.

5 In addition to the applicable considerations associated with heritage and conservation in cl 15 and 16, the relevant planning controls in the LEP include floor space ratio and landscaped area in cl 19. The proposal meets the landscaped area requirement, but having a floor space ratio (“FSR”) of 0.76:1 exceeds the maximum FSR of 0.7:1. An objection under State Environmental Planning Policy No 1 - Development Standards (“SEPP 1”) has been provided. Also relevantly applicable is State Environmental Planning Policy No 55 - Remediation of Land.

6 The provisions of Leichhardt Development Control Plan 2000 (“the DCP”) are applicable in relation to a range of matters, including car parking, neighbourhood character, built form, stormwater drainage, landscaping, residential amenity, privacy and views.

7 The application was advertised and two submissions were received objecting to the proposal. The first of those submissions is from Mrs M Fulton, of No. 7 Simmons Street, whose main objections comprise overshadowing of her front yard and reduced daylight into her kitchen, and roof drainage arrangements. These issues were explained on her behalf in some detail during the site inspection. The second submission is from Mr and Mrs Morris of No. 9 Simmons Street who expressed concerns about bulk and scale, including the garage door onto Simmons Street, the inappropriate appearance of the extension in the context of it being a semi-detached terrace and the reduction of on street carparking.

8 Following its consideration of an officer’s report recommending refusal the council decided that the application should be refused for 13 reasons involving non-compliance with various requirements of the LEP and the DCP.

9 In dealing with the issues before the Court, I was assisted by the Court-appointed heritage expert, Mr L. Tropman, the town planning experts, Mr I. Glendinning for the applicant and Ms D. Laidlaw for the respondent.

10 The application has, since its refusal, been significantly amended and the applicant has agreed to a number of additional conditions, including conditions relating to the glazing of the verandah infill, the carport design and roof water drainage. Taking these matters into account, and the evidence of the experts, I have concluded that the remaining substantive issue requiring the determination of the Court involves site contamination aspects associated with SEPP 55. Notwithstanding the contamination issue, I would comment that I have taken into account in the context of the evidence of the experts, especially that of Mr Tropman, the heritage requirements of the planning controls and am satisfied that these requirements are met by the proposal.

11 I have also considered the SEPP 1 objection in relation to the FSR development standard. In this regard I am satisfied, taking also into account the evidence of the experts, that the proposed development would meet the objective of the standard in cl 19(2) of the LEP in terms of reflecting existing residential development in the locality and that the objection can be upheld. In this regard I have also taken into account the draft State Environmental Planning Policy that also deals with development standards and the savings provision therein.

12 I should also comment on Mrs Fulton’s objection in relation to aspects of the overshadowing of her south-western yard off Simmons Street and daylight access into her kitchen. Clearly the proposal will have its greatest impact in mid-winter by creating additional overshadowing at this time. This space is already variously overshadowed by its own buildings and fencing. Ms Laidlaw agreed that the requirements of the DCP would be met at the equinox but not at the winter solstice. Mr Glendinning acknowledged the overshadowing but maintained that the primary area for private open space for this property was at the north-eastern end of the site overlooking the harbour, this are being totally unaffected by the proposal. Overshadowing and daylight access are not matters pressed by the council as a reason for refusal.

13 Whilst I accept that there will be impacts in terms of overshadowing and reduced daylight access, I have not been persuaded, essentially for the reasons given by Mr Glendinning, that these impacts are such as to require the refusal of the application. In this regard I also accept that even significant changes to the proposed extensions would probably make little difference to the overshadowing, although I note the proposed changes to the design of the carport will soften the appearance of the structure and allow additional light into No. 7.

14 In relation to SEPP 55 it was submitted on behalf of the council that the appeal should be adjourned to enable the applicant to obtain a report dealing with the possible contamination of the land and the need for remediation. This submission relies on a November 2005 Environmental Site Assessment Report prepared by Environmental Investigation Services for the adjoining property at No. 11 Simmons Street.

15 Clause 7(1) of SEPP 55 provides that:

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

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

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

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

16 Relevantly, s 145A of the Environmental Planning and Assessment Act 1979 defines “contaminated land” as follows:

Contaminated land means land in, on or under which any substance is present at a concentration above the concentration at which the substance is normally present in, on or under respectively land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment.

17 There was no direct evidence provided in relation to the subject land as to whether or not it was contaminated.

18 The site assessment report for No. 11 undertook an investigation of that site, which included the drilling of five test bore holes. Two of those test bore holes were positioned reasonably close to the common boundary between No. 11 and No. 9, one of these bore holes, BH 1, near the Simmons Street frontage adjacent to the proposed carport, and the second, BH 3, some metres beyond the harbourside alignment of the existing building at No. 9.

19 BH 1 and BH 3 were both shallow bore holes because of the existence of rock close to the surface. The other three bore holes, BH 2, BH 4 and BH 5, were generally positioned on the opposite side of the site between the existing house and the harbour. By comparison with BH 1 and BH 3 these three bore holes were somewhat deeper, with BH 5 continuing to 2.2 m. The site assessment attributes this difference to the existence of imported fill on the north-western side of the site generally between the existing dwelling and the harbour.

20 Materials extracted from these five bore holes were variously tested for heavy metals, organics, petroleum hydrocarbons, asbestos and toxicity. Surface samples were also tested. The results of these tests were compared against the applicable environmental and health-based soil investigation levels. These results revealed that BH 2, BH 4 and BH 5 exceeded these levels in terms of heavy metals (lead) and organics. BH 5 exceeded the applicable level in terms of petroleum hydrocarbons. There were no non-complying results from bore holes BH 1 and BH 3.

21 According to the assessment report, and based on an examination of the site’s history and available geotechnical information:

The main contamination risk is considered to be the use of potentially contaminated imported fill material to create the existing site levels. Based on a limited inspection of the surrounding land no significant potential for the migration of contamination onto the site was identified.

22 The assessment report also observed that the discovered contaminants are consistent with fill introduced to harbourside sites around the year 1900 for the purpose of land reclamation.

23 It seems to me that in accordance with the definition of contaminated land the environmental health results from the testing of the bore hole samples that BH 2, BH 4 and BH 5 are indicative of contaminated land. This contamination has probably resulted from the importation of fill onto that site as distinct from contamination resulting from the use of the land. On the same basis, the bore hole samples from BH 1 and BH 3 do not indicate contaminated land.

24 Given the shallow depths of BH 1 and BH 3 and the absence of contaminated materials it is a reasonable inference that that side of the site adjacent to the subject site was not subject to imported fill and is not likely to be contaminated, although I do note that a boatshed in this location does not appear to have been tested.

25 There was no suggestion that the subject land has been filled or that it has ever been used for a purpose that might cause contamination. I also note that apart from the proposed carport the proposed works do not involve any disturbance of the surface of the land. The carport involves a small amount of excavation adjacent to BH 1 and this is where the depth of soil above bedrock is likely to be very shallow.

26 In all of these circumstances and by extrapolation, I do not consider that the subject land is contaminated beyond the environmental health threshold for the purposes of SEPP 55. Even if there were some contamination of the land it is more than likely that the area of the carport is not contaminated beyond this threshold based on the test results for the close by bore hole. Given that there is to be no other disturbance of the soils on the site as distinct from works on existing buildings, I accept that the land is suitable for its presently proposed and indeed it’s continuing residential purpose.

27 In these circumstances, I am satisfied that there is no contamination impediment to my granting the consent as sought, and for the same reasons the proposed deferred commencement conditions in Exhibit 8 are not required.

28 It is therefore the decision of the Court that:

1. The appeal is upheld,
2. The development application for the carrying out of alterations and additions to the existing dwelling at No. 9 Simmons Street, Balmain is determined by the granting of development consent subject to the condition in what will become annexure A, that being exhibit 11.
3. Exhibits A and 11 are retained by the Court.

___________________

T A Bly
Commissioner of the Court
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