Pontlevis Pty Limited v Leichhardt Municipal Council

[2011] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pontlevis Pty Limited v Leichhardt Municipal Council [2011] NSWLEC 1193

Hearing dates:

19, 20 and 21 April 2011

Decision date:

15 July 2011

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is dismissed.

(2)Development consent to DA/2010/503 for subdivision of lot 12 DP 113 2009, known as 5 Tilba Avenue Balmain and the construction of two three-storey attached dwellings with associated parking landscaping and swimming pools on each lot is refused.

(3)The exhibits returned.

Catchwords:

DEVELOPMENT APPLICATION - SUBDIVISION - heritage conservation area, desired future character of the area, setback, bulk and scale

Legislation Cited:

Environmental Planning and Assessment Act 1979
Leichhardt Environmental Plan 2000
Leichhardt Development Control Plan 2000
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Sydney Harbour Foreshores and Waterways Area Development Control Plan

Cases Cited:

Hammond v Leichhardt Municipal Council [2010] NSWLEC 1209
Planit Consulting v Leichhardt Council [2008] NSWLEC 29

Category:

Principal judgment

Parties:

Pontlevis Pty Limited (Applicant)

Leichhardt Municipal Council (Respondent)

Representation:

Counsel
Ms J Walsh, Solicitor (Applicant)

Mr A Pickles, Counsel (Respondent)
Solicitors
Paul A Brown & Co (Applicant)

Pikes Lawyers (Respondent)

File Number(s):

11055 of 2010

Judgment

Summary

1. This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 against Leichhardt council's refusal of development application D/2010/503. The applicant seeks consent to subdivide Lot 12 of DP 1132009 known as 5 Tilba Avenue, Balmain into two long, narrow lots and construct a three-storey attached dwelling with associated parking, landscaping and swimming pool on each lot.

1. Council has refused the subdivision of this site into two long, narrow lots because it is inconsistent with the prevailing pattern of subdivision in the locality. It also contends, based on the town planning evidence of its expert, Ms Laidlaw, that the proposed lots do not provide"... an appropriate setting for development, in terms of the site area, dimensions and amenities ". Rather, they dictate an unacceptable terrace /attached style development form which does not respect the Desired Future Character of the area as identified in council's Development Control Plan 2000 (DCP) in Part A10.6.6.

1. The applicant's town planning expert, Mr Goldsmith, disagrees with council's assessment. His evidence is that the long and narrow lots are consistent with the desired suburb profile in the DCP. They also comply with the minimum site area - 200m2 - under cl 19 (4) of Leichhardt Local Environmental Plan 2000 (the LEP), and are consistent with the considerations in cl 30 (a) and (b) of the LEP. In his assessment the constraints of the site justify a variation of the side setback controls in Part B1.2 of the DCP.

1. To understand the evidence the Court commenced the hearing of this appeal with a view of the site. It inspected the site from the adjoining property to the south, the street and from the water. At that time it also heard evidence from several objectors to the proposal. One of those objectors was the adjoining owner at 7 Tilba Avenue whose property, in Council's assessment, is adversely impacted on by this development.

1. The statement of facts and contentions filed on 9 March 2011 records at paragraphs 1.3 and 1.4 that the site (Lot 12) was approved by the Court in Planit Consulting v Leichhardt Council [2008] NSWLEC 29. Apparently, in that appeal the applicant offered to accept a condition requiring the amalgamation of two long, narrow lots to create Lot 12. The judgment states, in respect of the development potential of lot 12, at [42] " ...the side setbacks could be fully, or almost fully applied. Other controls, such as Floor Space ratio and landscaped area, could also be met without difficulty..." The evidence in this appeal supports that assessment of the site's development potential. Despite that opportunity, however, the applicant seeks consent to re-subdivide the site (lot 12) and construct two non complying three-storey attached dwellings with associated parking, landscaping and swimming pool on each lot. The proposal is in breach of the side setback controls, the rear and front Building Local Zones, the landscape controls (on council's calculation) and the FSR control for the site.

1. It is council's position that this site (lot 12) has the potential to accommodate a proposal that achieves a balance between built form and landscape, through side setbacks and landscaping. Such a proposal, it submits, would also be more consistent with the suburb profile for Birchgrove Distinctive Neighborhood, as described in Part A10.6.6 of the DCP 2000.

1. I accept the council's evidence that the Desired Future Character for this larger waterfront site is a detached or semi-detached house or a single or double storey freestanding form. The proposed terrace/attached style development is inconsistent with that character of freestanding dwellings with landscape separation between them. The view confirmed council's evidence that Tilba Avenue is characterized by wider lots with freestanding dwellings with side setbacks and landscaping at the street frontage and waterfront. The proposal's breach of the side setback controls results in a development that presents to the waterfront as a bulky, rectangular form, disproportionate in mass and scale to the adjoining development. From the water the development is read as one built form not two separate dwellings. This unacceptable view from the water is relevant under with the provisions of the Sydney Regional Environmental Plan (Sydney Harbor Catchment) 2005 and Sydney Harbour Foreshores and Waterways Area Development Control Plan (Sydney Harbour DCP). The proposed carports built forward of the BLZ are not compatible with the siting and landscaping of the adjoining properties at 7 Tilba Avenue and 1A Tilba in this conservation area. Clause 16(8)(b) of the LEP in my opinion precludes consent to this proposal. The long wall (with virtually no articulation or setback on the southern boundary) also overwhelms the adjoining property at 7 Tilba Ave.

1. In my assessment, under s 79C (1) of the Act, the evidence supports a finding that the proposed subdivision is unacceptable and the proposal is an overdevelopment. The site is simply not suitable for this development.

Background

1. The council's statement of facts and contentions dated 9 March 2011 sets out in detail the proposal and the history of the site and the adjoining lot at 3 Tilba Avenue. These matters are relevant because they set the context of this application and council's consistent approach in respect to the application of its controls for this part of Balmain.

1. On 24 January 2008, the Court granted development consent to demolish existing structures on the site 1 to 5 Tilba Avenue and carry out remediation work. At that time, the site contained four irregular allotments.

1. A critical issue in the earlier appeal matter number 10885 of 2007 apparently, was the demolition of the structures without an understanding of future development of dwellings on each of the lots and the ability to satisfy council's planning controls in the LEP 2000 and the DCP. According to the statement of facts and contentions, which is undisputed by the applicant, this concern was addressed to the satisfaction of the Court by the fact that the applicant agreed to amalgamate lots 3 and 4 - resulting in three allotments extending from the street to the waterfront each with a minimum width of about 7.5 m. At para 24 of the Court's judgment, Senior Commissioner Roseth stated:

The evidence suggests that only one of the [LEP/DCP] controls, the setback from side boundaries, could not be fully applied in one of the proposed lots, namely lot A which has a width of 7.5 metres. On the other two allotments, the side setbacks could be fully, or almost fully, applied. Other controls, such as Floor Space Ratio and landscaped area, could also be met without difficulty..."

1. Apparently, on 9 September 2008 the council approved a modified development application D/2007/572 to facilitate the adjustment of the lot boundaries. Three lots have the following areas:

Lot 10 - 507.3 sq m

Lot 11 - 579.6 sq m

Lot 12 - 740.9 sq m

1. On 6 August 2010 in Hammond v Leichhardt Municipal Council [2010] NSWLEC 1209 the Court dismissed an appeal for the subdivision of lot 11 known as 3 Tilba Avenue - into two lots along the length of the site - and the construction of a three-story attached dwelling with associated parking, landscaping and swimming pool on each lot.

The proposal

1. This appeal involves the subdivision of lot 12, the largest of the three allotments, to be divided equally along its length into two lots, lot 5(1) and lot 5(2). Lot 5(1) has an area of 375.6 sq m and a width of approximately 6 m (halfway down the block) and splayed frontage of 6.795 m and lot 2 has an area of 365.3 sq m and a width of approximately 6.5 m and a splayed frontage of 8.035 m.

1. The proposed building works are described in paragraphs 1.8 to 1.13 of the agreed statement. In summary, it is a proposal for two three-storey dwellings with a deck, swimming pool and landscaped area extending to the sea wall. At street level each development has a double carport, entry with driveway and landscaping and one tree. The dwellings are of masonry construction and contemporary with a "butterfly" roof design falling to a central box gutter on the common wall between the two dwellings.

1. For dwelling 5(1) the side wall on the ground floor on level one have a nil setback to the northern side boundary for most of its length with a 900 mm setback against the stairwell. On level two the side wall is set back 900 mm from the northern side boundary with a planter shown in that setback. The double carport extends to the northern side boundary for a length of 6 m. This carport is forward of the building's front building line and setback a minimum of 1.78 m from the front boundary.

1. For dwelling 5(2), the side wall on the ground floor, level one and level two, is set back 900 mm from the southern side boundary for most of its length with a 1.3 m setback adjacent to the stairwell. The double carport is forward of the proposed dwellings front building line with a minimum setback of 1.78 m from the front boundary. It is set back approximately 1 m from the northern side and 500 mm from the southern side boundary. The carport is 6 m in length and in the order of 4.9 to 5 m wide. The proposed dwellings are constructed with their rear alignments at level one, breaching the building location zone (BLZ) established under part B1.2 of DCP 2000. However, the measurement of the DLZ is at issue. The applicant maintains that the BLZ should be measured from the edge of the verandah of 7 Tilba Avenue, rather than the building. After a consideration of the words in the control and the evidence I accept council's measurement of the BLZ. The rear walls of both dwellings comply with the foreshore building line (FBL) established under the LEP. However, at ground level the deck and the shared common boundary walls extend beyond the FBL.

1. The elevation to Tilba Avenue will be of two double carports with a cantilevered pitched roof to a height of approximately 2.8 m (dwelling 5(2)) and 3.4 m (dwelling 5(1)) above street level. The elevation to Iron Cove is described as two three-storey attached dwellings. A 1.8 m masonry wall is proposed between the proposed lots and between each of the lots in the adjoining vacant land, with this reducing to 1.2 m adjacent to the waterfront.

The site

1. The site (lot 12) has an area of 740.9 sq m. It has a splayed frontage of 14.835 m to Tilba Avenue and slightly wider frontage of 15.235 m to Iron Cove. The site has a depth of 65.44 m (northern boundary) and 55.75 m (southern boundary). The width of the site is approximately 12.5 m.

1. The site falls from the road to the water by approximately 9 m with a steep fall of approximate 6 m at the northeastern corner adjacent to Tilba Avenue. The level at the northeastern corner adjacent to Tilba Avenue is RL10.79 and at the waterfront, RL1.69. The levels have been modified as a result of demolition and remediation works.

The adjoining properties and localities

1. The view confirmed that the streetscape in Tilba Avenue can be characterized as containing detached and semi-detached dwellings of mixed form and appearance. To the north of the site are two vacant lots. Although I understand that there is an application before the council to develop lot 11, DP1132009 at 3 Tilba Avenue with a single dwelling and car parking. Further to the north is a property known as 1A Tilba Avenue. A freestanding two-story older style dwelling, with a detached garage facing Tilba Avenue separated from the house by a front garden occupies on that site.

1. Opposite the site to the east fronting Tilba Avenue are two-storey freestanding dwellings. To the south of the site is a detached dwelling house at 7 Tilba Avenue with detached garage adjacent to the street, separated by a garden. As noted earlier, the owner of that property addressed the Court and spoke to his written objection. Those objections are:

• "The unbroken wall from street down to front veranda, the height of the wall and its lack of articulation;
• The lack of green patch at the front of the site;
• If only one house, could have a garden at the street front before the high wall started;
• If you had only one dwelling, the building would not have to be as wide and you could have garden space and view slots from Tilba Avenue down to the water;
• If only one house, could have more scope for the building to be setback further from the side boundary with my property and for it to be broken up into different elements;
• Privacy impacts from a window on the elevation facing his property."

1. Several objectors echoed the concerns and objections raised by the owner of 7 Tilba Avenue. I also note council's expert Miss Laidlaw advised that that a condition requiring a privacy screen on the upper level of the development would address the privacy issue identified).

Statutory controls

1. The site is located within the Residential zone, pursuant to the LEP and the proposed development is permissible with consent in the zone. However, the control in cl 7(3) provides that development consent must not be granted unless the consent authority has taken into consideration relevant objectives of the LEP and is satisfied that the development is consistent with those objectives.

1. Clause 13(2) sets out the general objective for the built and natural environment and amenity, it encourages the design of buildings, structures and spaces that are compatible with the character, form and scale of the area.

1. Relevantly, cl 17 provides objectives in relation to housing. It provides:

The provision of development standards to ensure that the density and landscaped area of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2002 to achieve the desired future character.

1. The LEP in cl 19(2) sets a maximum floor space ratio of .7:1 and this development over both lots proposes an FSR of .171:1 - which is technically a breach of the standard. Clause 19(3) provides for a minimum landscape area of 40% of the site of which 25% must be soft landscaping. While the applicant contends that the proposal is compliant with the landscaped area ratio at 47% of the overall site, the council does not agree. It contends that parts of the area calculated are not at ground level as required by the definition of landscaped area and in this regard the proposal does not meet this criterion. Council estimates only 32% landscaped area is achieved. The applicant has submitted a SEPP 1 objection to compliance with the standard, on the basis that the objectives of the standard are achieved; although it concedes that the landscape area at finished ground level exceeds 40%.

1. Clause 19(4) deals with subdivision control. The proposed development complies with the minimum site area of 200 sq m. Despite that however, cl 30 provides:

Before consenting to a subdivision of land, the consent authority must consider whether the subdivision will:

(a) provide an appropriate setting for development in terms of site area, dimensions and amenity to satisfy the needs of future residents and businesses; and

(b) protect the urban form, scale and density of the locality.

1. In the joint statement prepared by the town planners, which is exhibit 2, the experts disagree as to whether the proposed lots comply with cll 30(a) and (b) of the LEP. It is the applicant's evidence that a 6 m width of lot and dwelling is not uncharacteristic of the Balmain Peninsula Area. However, council's evidence is that lots in the immediate locality are significantly larger and wider than 6 m/6.5 m wide lots proposed in this application. The wider lots, it contends, promotes the development of freestanding detached and semi-detached dwellings, a form consistent with the desired future character statement for the DCP 2000, as well as with the balance between built form and landscape to be achieved/maintained through side setbacks and landscaping.

1. The fact that waterfront lots tend to be significantly wider than the proposed lots does not make them uncharacteristic. They are still long and narrow, but as explained in the DCP, historically grander houses were located on the waterfront, larger sites with smaller more modest housing away from the water's edge. I accept, as council's expert suggests, that the narrow width of the proposed lots virtually dictates a terrace style of development, built on, or close to the side boundaries, and this, indeed, is the character of the actual dwellings proposed in this application. The attached form of the development is not characteristic of the larger lots at the water's edge or the desired future character that promotes semi-detached or detached freestanding forms with separation between them. I do not accept, as the applicant contends, "...it is inevitable that development of lots 1 to 5 Tilba Avenue will be a row of dwellings positioned quite close to each other. There is no other way unless lots are amalgamated " (exhibit 2, p 3, para 1.4). In the appeal, the recently amalgamated lot 12 is proposed to be re subdivided. A subdivision as proposed will dictate that dwellings will be positioned quite close to each other. If the lot remains unsubdivided, there is potential based on councils evidence, to develop detached/semi-detached freestanding forms with separation between them.

1. The impact of the proposed design with its long wall facing 7 Tilba Avenue with minimal setback on the ground floor and with a slight increase on the first floor can be avoided if the site was not subdivided but developed with near compliant setback. Such a development would also avoid the overshadowing which would affect number 7 as a result of the proximity of the bulk and form of this development so close to the boundary.

Setback

1. The council concedes that compliance with the setback control, which is a sliding scale, set out in Part B1.2 of the DCP, is difficult. However the configuration of this proposal as a terrace form with a common wall and nil setback to the northern side at ground floor and first floor and a minimal southern side setback of 900 mm is not justifiable on the site. The pattern of development on Tilba Avenue will be compromised if this subdivision were to be approved, with the zero setbacks as proposed. While the articulation of the built form and gaps between buildings attempts to overcome the noncompliant setback. It is unacceptable on council's evidence. The desired future character statement, in the DCP Part A. 10.6.6, promotes freestanding or detached dwelling forms as being characteristic of this locality and further provides that:

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.

1. I accept, as Ms Laidlaw pointed out at the view, that side setbacks are essential to achieve the desired future character, particularly when viewed from the water. A terrace form, built on or very close to the side boundaries, conversely is, obviously contrary to this existing and desired future character. Minimal side setbacks on smaller long narrow lots in other parts of the suburb might be justified under the controls.

1. However, in this waterfront area where there are larger lots with existing side setbacks (as evidenced by 1A and 7 Tilba Avenue adjoining the site) it is unacceptable to have a nil or 900mm setback at ground level. View corridors to the water from Tilba Avenue are dependant on side setbacks between buildings and the proposal does not provide sufficient set back to allow view corridors to and from the water. The setback at the upper level of the development does not overcome this issue. I accept Ms Laidlaw's evidence that the view from Tilba Avenue through the 900 mm setback at the uppermost floor is compromised because of the overhanging roof design of the carport (which sits over this narrow view corridor) and by the horizontal plane of the first floor built to a nil setback on the northern side.

1. I accept, as the Council contends, that when viewed from the water you will see a three-story elevation with, over most that elevation, a 900 mm setback to south and a nil setback to the north. I agree with Miss Laidlaw's statement in the joint report that " This 'higher section' of the building thus makes negligible concession to the DCP's variation criteria that higher sections be setback in accordance with the control ." I accept, as she suggests, that - when viewed from the southern side - the negligible side setback produces a highly unsympathetic wall built close to the boundary with 7 Tilba Avenue, a building which itself provides a generous side boundary setback and is a freestanding form in a garden setting.

1. I do not think it is relevant to compare the proposed design to the building that has been demolished, particularly when assessing the impact on 7 Tilba Avenue. The amenity impact - by way of bulk and overshadowing on adjoining properties - particularly 7 Tilba Avenue, provides strong justification for the separation of built form from the boundary by an appropriate side setback. I accept it is irrelevant to consider the contribution that the original building on the site made to the character, because this building no longer exists.

1. The gaps proposed between the buildings on either side of the lots in conjunction with the development which exists on 7 Tilba Avenue is not sufficient separation. Side setbacks also have capacity for landscaping, but more importantly, the opportunity to reinforce the detached freestanding dwelling form, and distinguish the character of this area from other areas within the municipality. I accept, as council's evidence suggests, that the rear decks of the properties extend beyond the building location zone (under Part B1.2 of the DCP 2000) and that the development also breaches the foreshore building line. These breaches add to the mass of built form when viewed from the water. I do not accept that the proposal complies with the rear BLZ. A line extending between the rear wall of 1A Tilba Avenue and the rear wall of 7 Tilba Avenue in accordance with the DCP determines the rear BLZ and the front BLZ. According to the to the evidence, this is the same BLZ as applied to development application for the adjoining lot 3 Tilba Avenue.

1. I accept that the key planning purpose of the BLZ is to ensure development is sited in the location where it is expected which helps to ensure equity in terms of mutual impacts of bulk, scale, overshadowing and between neighboring properties. Secondly, it helps to ensure consistency in streetscape patterns when viewed for the harbour (exhibit 2, p 12, para 3.2). A distinctive feature of Tilba Avenue is the fact that separation between buildings is achieved, not only by side setbacks but by a garden at the frontage and at the water's edge. This is what occurs on 7 Tilba Avenue and 1A Tilba Avenue. However, in this development, as council points out, there is almost solid wall of development from the back edge of the carports up to the rear building location zone, and the double carports are forward of the building line detract from the streetscape and are contrary to requirements of Part A 10.6.6.

1. While the FSR breach is minimal, I accept as council suggests, that the breach is dictated by the necessity to build to the maximum in circumstances where there will be a subdivision into uncharacteristically small lots. It is also the result of the chosen built form which is a relatively bulky and unsympathetic terrace style development proposed on each lot. While the planting of the two-angophora trees at the street frontage is an attempt to provide landscaping, the proposal fails to reflect the character of established development on that street, where a dwelling house is separated from the street by a garden or detached garage. The plantings at the rear of the property toward the seawall are of low shrubs and ground cover and do not promote a balance of built form for landscaping as sought for the desire future character.

1. In summary, I accept council's evidence that the proposed development does not step down the topography of the site to reflect the original slope, but rather presents as three-storeys to Iron Cove without any visual material stepping of built form. It does offend the Desired Future Character Statement in of Part A 10.6.6 of the DCP. It does not:

"Conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi-detached houses with a prevalence of hipped, pitched and gable roof forms. Preserve the established setbacks for each street or promote a balance of landscape to built form in the view of the neighbourhood when viewed from the water.."

1. In this regard, the proposed development presents as a terraced style development with nil or negligible side setbacks and significant bulk. It does not promote an appearance of a detached freestanding residence. It does not " conserve the single and double storey, freestanding form, style and materials, characteristics to each street ". In the streetscape its form is dominated by garages and driveway crossings. This particularly arises from the development's failure to comply with the controls for side setback and the BLZ under Part B1.2 of the DCP 2000. After a consideration of all of the matters relevant under s 79C(1) including the DCP and the desired future character of the area, I accept council's evidence that the site is not suitable for this development. The court's orders are

(1)   The appeal is dismissed.

(2)   Development consent to DA/2010/503 for subdivision of lot 12 DP 113 2009, known as 5 Tilba Avenue Balmain and the construction of two three-storey attached dwellings with associated parking landscaping and swimming pools on each lot is refused.

(3)   The exhibits returned.

Susan Dixon

Commissioner of the Court

Decision last updated: 15 July 2011