Pavey v City of Sydney Council
[2010] NSWLEC 1176
•16 April 2010
Land and Environment Court
of New South Wales
CITATION: Pavey v City of Sydney Council [2010] NSWLEC 1176 PARTIES: APPLICANT
RESPONDENT
I Pavey
City of Sydney CouncilFILE NUMBER(S): 10003 of 2010 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy 1
Leichhardt Local Environmental Plan 2000
City of Sydney Heritage Development Control Plan 2006CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167, [2001] 155 LGERA 373 DATES OF HEARING: 16 April 2010 EX TEMPORE JUDGMENT DATE: 16 April 2010 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr D Briggs, solicitor
D G Briggs & Associates
Mr A Hawkes, solicitor
City of Sydney Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE SC
16 April 2010
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.10003 of 2010 Pavey v City of Sydney Council
JUDGMENT
1 SENIOR COMMISSIONER: This is an appeal concerning a development application for the proposed reconstruction of a dwelling at 72 Bellevue Street, Glebe and the erection of a new dwelling on the adjacent block of land to the south at 70 Bellevue Street, Glebe.
2 The existing dwelling - inspected during the course of the conciliation phase of these proceedings - is in a significantly dilapidated state but the intention is to retain much of the sandstone structure and to create an additional wing at the rear and (contested in these proceedings) to create an additional bedroom space within the roof void of the present dwelling.
3 The proposed new building at 70 Bellevue Street is, as a result of the agreements that were reached during the course of the conciliation process, now uncontroversial.
4 In essence, there are two matters that require to be determined with respect to the proposed building at 72. They relate to whether or not the rear living room area, the western end of the building, should be lowered - resulting in a lowering of the ceiling of two bedrooms on the ground floor level below - and, second, whether the proposed attic bedroom should be redesigned to be in conformity with the provisions of the council’s Development Control Plan (City of Sydney Heritage Development Control Plan 2006 - the Heritage DCP).
5 No matter what the outcome of the proceedings, if there is to be a development consent, I need to uphold an objection to compliance with the floor space ratio controls contained in the Local Environmental Plan. There is, however, no significant dispute between the parties that those provisions, being contained in the Leichhardt Local Environmental Plan 2000 at cl 19, warrant variation if a consent is to be given. It is merely the extent of the variation that should be sustained that is in dispute.
6 The position put by Mr Briggs, solicitor for the applicant, supported by the evidence of the witnesses for the applicant, is that the plans as presently before the Court in their amended form should be approved but that if they are not approved, the applicant should be given the right to have plans drafted in conformity with a butter paper sketch prepared by Mr Gorman, the applicant’s architect, that is exhibit D, and that after formalised plans reflecting exhibit D are prepared the applicant should be given a development consent in terms of exhibit D. The exhibit D proposal is said by Mr Quinn, the planner who gave evidence on behalf of the council, to be a significant improvement on that which is in the plans presently before the Court, but in itself does not sufficiently comply still with the provisions of the Heritage DCP to warrant approval, but that some further variation of that might be capable of being given approval.
7 Effectively, given that the difference between the parties on floor space ratio is minor and that the SEPP 1 objection, in general terms, is capable of being sustained, the matters to which I must turn my attention are the impact of the provisions of cll 6.2 and 8.2.4 of the City of Sydney Heritage Development Control Plan on the proposal.
8 It was conceded, correctly in my view, by Mr Hawkes, solicitor who appears for the council, that the question of the roofline and the like of the rear living room is of lesser concern than the question of the design and fit of the proposed attic space bedroom at the upper level of the building.
9 I turn first to consider the question of the living space area. First I note that, as to the emphasis I should give to the Development Control Plan, Zhang v Canterbury City Council [2001] NSWCA 167, [2001] 155 LGERA 373, deals with the question of how I should pay attention to a development control plan. From what was said by Spigelman CJ in those proceedings a number of propositions emerge. First, although I have a wide ranging discretion, the discretion is not at large and is certainly not unfettered. Secondly, and critically in these proceedings, the provisions of a development control plan are to be considered as a fundamental element in, or a focal point for, my decision making process particularly where, as is the case here concerning design issues, there are no issues relating to the compliance with the Local Environmental Plan. Finally, the provisions of the Heritage DCP that are directly pertinent to the application are entitled to be given significant weight but are not themselves determinative.
10 The position that emerges from that is that, having had regard to the Heritage DCP, if on a proper merit consideration pursuant to s 79C of the Environmental Planning and Assessment Act 1979, an application that is not compliant with the Heritage DCP merits approval, approval can be given despite the non-compliance. It is in that broad framework that I turn to consider the two elements of the proposal now. As Mr Hawkes indicated, the concerns that relate to the living area are of significantly lesser importance in the present context than that which relates to the attic bedroom. I therefore turn to deal with the attic bedroom first.
11 The relevant provision here is contained in cl 6.2.2 of the Heritage DCP - that provides that additions should maintain the integrity and profile form of the original building including roof form and profile and allow the original building to be discerned. The proposed rear element is not the same as the original form but is, in broad, consistent with it. There will, however, be a narrowing of the lightwell along the side of the building to the north as part of the proposed addition is proposed to be built boundary to boundary. Overall, the primary matters that are of concern relating to this built form are its presentation to the public domain and to the dwelling immediately to the south at 68 Bellevue Street.
12 I have had tendered perspectives that show from a number of locations how the living area space would be presented. The most significantly obvious of those views are those that would be perceived from Darghan Lane, a service laneway running north-south at the rear of the site, and from Railway Street, an east-west running street adjacent to the light rail rail line located a little to the north and downhill from the site.
13 Those perspectives show to me that, starting with the view from Darghan Lane, an element (but a modest element) of the upper portion primarily of recycled sandstone facing from the existing building will be able to be viewed from Darghan Lane at the height proposed by the applicant. If the height proposed by the council were to be adopted, the small elements of fenestration that would otherwise be able to be viewed will disappear and merely a small portion of the sandstone parapet would be observable.
14 Mr Briggs questioned the witnesses, particularly Mr Quinn, about what would be the presentation, acceptability and impact of a double garage located at the western frontage to Darghan Lane but located some 1.5 metres set back from that lane - that not being an unlikely possible form of development for this site. I accept the evidence that was given by Mr Burrell that such a structure would be significantly more dominant than would be the case of that which is presently proposed.
15 The view from Railway Street of the present proposal is one that is not, from the perspective that has been produced, entirely inconsistent or unsympathetic with the island nature of the extension at the rear of the property that is to the north of the sites.
16 The visual intrusion of the additional height of the living area is comparatively modest from any location in the public domain. I am satisfied that the internal impacts on the amenity of the bedrooms below that would follow the lowering of their ceilings to accommodate two steps that would be necessary to continue a single level floor plane throughout the middle level of the building (that single level floor plane, in my view, being a desirable design feature for a living area space in a building such as this), outweigh any adverse impacts that might be perceived from the public domain. As a consequence I do not consider it appropriate to require that those modifications be made to the applicant’s plans.
17 It is fair to say that, with respect to that element of the matters that are in dispute between the parties, there was a simple, as I understood it, “yes” or “no” position adopted. The matter with respect to the proposed attic bedroom is somewhat more nuanced - in that the applicant says he wishes an approval as proposed but, if not, an approval in terms of formalised plans for that element of exhibit D; whereas the council says I ought not approve either the present plans or a formalisation of that which is contained in exhibit D but should refuse the application in its entirety because the attic bedroom is unacceptable on either such alternative.
18 It is in that context and the framework of guidance provided by the Court of Appeal’s decision in Zhang that I turn to consider the provisions of 8.2.4 of the Heritage DCP, which deals with rear roof extensions.
19 In this regard, it is clear that the Heritage DCP sets out a number of physical requirements about how an attic bedroom space is to be sited, particularly so that the shape of the original roof form within which the attic bedroom is to be inserted, will be able to be read and understood from places in the public domain.
20 Although Mr Burrell made much of the words in cl 8.2.4 - where the word “particularly” appears in several locations - to suggest that it was of greater importance when rows of terraces were being considered and that because this is an island building it was of less importance, I do not accept that the lesser importance that arises from setting aside the use of the word “particularly” removes the importance for a single existing building, as is the case here, so as to make it, in effect, a de minimus matter of consideration.
21 The matters that are contained in the proposal for which approval is sought that are in significant contradiction of the design guidance provided by the Heritage DCP relate to the sloping glassed roof of the area of the access stairs proposed to get to the roof bedroom - which is to be an element that extends beyond and is consistent in design with an element of similar nature to the north that also extends beyond the line of the roof form of the present structure.
22 It is clear from the perspectives with which I have been provided that both from the park at the end of Darghan Lane that runs through to Bellevue Street and is also bounded by Darghan Street, both of those elements will be viewed as being of similar design and certainly the element that is proposed for the upper level of 72 will be distinctly different from and out of character with the design guidance that is provided by the Heritage DCP. The alternative design is one that is more closely in keeping with the spirit of the provisions of the Heritage DCP.
23 In view 4 of the perspectives that have been provided, the view from Railway Street to the north makes it entirely clear that the nature of the wall structure that is proposed to be on the northern face of these sloped stairway roofs that will be viewable from Railway Street, being the wall on the proposed property to the north - that is the one in contention at 72 - will be entirely different from the nature of the room in the roof in the structure immediately to the north. It will certainly not be consistent with anything relating to the present structure of the roof of the house.
24 In this regard I had evidence from Mr Burrell as to why he said I should consider that this roof form was acceptable. The reasons that he gave for that, in my view, compellingly lead me to an alternative conclusion. His evidence was, on my notes, that the angled roof on the stairs, if required to be deleted from 72, would be out of character with the flow with the remainder of the group of the buildings but if retained would be consistent with the new building to be erected immediately to the south.
25 It is, in my view, the necessity for the distinction to be drawn between the old building and the new, that is the reason why the staircase structure leading to the attic level is not appropriate to be approved. As Mr Hawkes rhetorically asked the question, “What is wrong with one building being completely new and one respecting the provisions of the Heritage DCP?” -that being the result that would flow if the existing building were required at the attic level to be compliant or generally compliant in its design form with the Heritage DCP.
26 I am therefore satisfied that the newness and entirely alien nature of the sloped roof of the staircase to access the attic bedroom in the proposed dwelling at 72 is unacceptable and should not be approved.
27 I therefore turn to the question of whether or not that which is presently proposed as the alternative, in exhibit D, to the attic bedroom should be approved. I am satisfied that it should do so, notwithstanding Mr Quinn’s reservations about it.
28 Although this space will have a degree less amenity than would be the case had the original bedroom been approved, and although it will be necessary, if the applicant wishes to do so, to have a glassed roof or skylight element over the staircase to provide solar and light access into the middle floor, nonetheless I am satisfied that it is appropriate to allow a slightly larger than otherwise would be the case footprint for an attic bedroom for amenity purposes and to do so for the following reasons:
- First, the nature of the sketched design is one that clearly is in broad conformity with the overall shape although the setbacks are not precisely compliant with that which is envisaged by 8.2.4 of the Heritage DCP;
- Second, it is not intended to be a master bedroom but is nonetheless a significant bedroom that will have modestly attractive outlooks through its dormer window and its fenestration to the west, although that will be limited to those viewing it from the en suite bathroom; and
- It is also desirable, I accept given the location of this bedroom in the roof two floors away from the other ablution facilities in the premises to have an en suite bathroom for it as part of reasonable amenity (although the bedroom is to be a secondary bedroom rather than the master bedroom to the premises).
29 The differences between that which is proposed and the requirements of the Heritage DCP are comparatively minor setback ones and are certainly not ones that would be significantly visibly able to be appreciated by any of the locations from which this element of the structure would be capable of being viewed. I am therefore satisfied that it would be appropriate to grant the applicant a period of time to prepare revised plans that retain the living area as I have prescribed it (with the better levels of solar access for the lower bedrooms than will be the case if it was required to be lowered), but redesigning the space in the roof so that it reflects the space in the roof contained in outline in exhibit D.
30 The consequence of that is that when such plans are prepared and any revision of the conditions of consent provided to do so, I will make orders that would sustain the SEPP 1 objection to the compliance with the development standard as to FSR that would necessarily follow from that amended set of plans and I would uphold the resultant appeal and approve the development in form of those plans.
Tim Moore
Senior Commissioner
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