Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust v Leichhardt Municipal Council

[1999] NSWLEC 266

Land and Environment Court

of New South Wales

CITATION:	Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust v Leichhardt Municipal Council [1999] NSWLEC 266
PARTIES	APPLICANT: Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust
RESPONDENT: Leichhardt Municipal Council
NUMBER:	10238 of 1999
CORAM:	Talbot J
KEY ISSUES:	Development :- overdevelopment - traffic - waterfront use
LEGISLATION CITED:
DATES OF HEARING:	11/23/1999; 11/24/1999; 11/25/1999; 11/26/1999; 11/29/1999; 11/30/1999
DATE OF JUDGMENT DELIVERY:	12/08/1999
LEGAL REPRESENTATIVES:	APPLICANT: Mr J J Bingham (Solicitor) SOLICITORS: Deacons Graham & James RESPONDENT: Mr P J Schofield (Solicitor) SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 10238 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 8 December 1999

Propertylink Finance Pty Ltd
acting as trustee for
Duke Investment Trust
Applicant

v
Leichhardt Municipal Council

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is seeking development consent to demolish an existing industrial building known as 7 Duke Place, East Balmain and then to construct a residential flat building comprising six three bedroom dwellings and a marina office with residence ancillary to the adjoining marina. The proposal includes 16 basement car spaces separated into a double garage, a six space car park and an eight space car park with access through three separate driveways.

2. During the hearing the applicant withdrew that part of its application which dealt with demolition of the existing building.

3. The present site comprises three allotments, Lots 1 and 2 in DP 808064 and Part Lot B in DP 317292. It is located on the corner of Duke Place and Duke Street at East Balmain and has a frontage to Mort Bay of 8.84 metres.

4. The development offers views across Mort Bay.

5. The subject site shares common boundaries with two properties. These are known as 41 Duke Street and 5 Duke Place. A row of seven fig trees lines Duke Street.

The Zoning

6. The development falls within three separate zones.

7. Lots 1 and 2 are zoned Residential 2(b2) under Leichhardt Local Environmental Plan 20 (LEP 20). Lot B is zoned Waterfront Industrial 4(c) under Interim Development Order 27 - Municipality of Leichhardt from the original mean high water mark to approximately a foreshore building line and the present mean high water mark. The northern most part of Lot B extending into Mort Bay is unzoned by any local environmental planning instrument.

8. The entire site is also zoned W1 - General Waterways under Sydney Regional Environmental Plan 23 (SREP 23).

9. Any purpose except for large marinas is permissible with development consent within the W1 - General Waterways zone.

10. Residential flat buildings are permissible within the 2(b2) Residential zone under LEP 20.

11. A marina with caretaker’s residence is a permissible use in the Waterfront Industrial 4(c) zone.

12. Part of the marina and residence is within the 2(b2) Residential zone and is a prohibited use under LEP 20. Originally the applicant relied on existing use rights to redevelop the marina area.

13. Clause 4(1) of SREP 23 states:

4.(1) In the event of an inconsistency between this plan and any other environmental planning instrument (other than a State environmental planning policy), whether made before, on or after the date on which this plan takes effect and which applies to the land to which this plan applies, this plan shall, to the extent of the inconsistency, prevail.


14. Thus, due to the inconsistency between SREP 23 and LEP 20, a marina/residence is not prohibited within the 2(b2) zone as it is a permissible use under SREP 23.

The history of the development application

15. On 19 February 1999 the applicant lodged a development application with the respondent council and this was reported to a meeting of the Building and Development Committee on 31 August 1999. The matter was deferred for a works inspection and on 9 September the council resolved to defer the application.

16. A meeting was held with the applicant on 15 September 1999 where the applicant presented amendments to the proposal. The application was then reported, on 12 October 1999, to a meeting of the Building and Development Committee where it was resolved that the DA be deferred for consultation with the applicant, objectors and council officers.

17. On 25 October 1999 amended plans were presented to council which modified the proposal. The amended plans were formally notified and objectors to the application were invited to a meeting held on 10 November 1999.

18. In a report to the Operations and Services Meeting for 16 November 1999 a council officer recommended that the proposal be approved subject to conditions. The matter was deferred to the Building and Development Works Committee on 18 November 1999. The council officer’s report to this meeting recommends that the proposal be granted deferred commencement. The council has formally resolved to refuse consent since the application was lodged in this Court.

The issues

19. The main issues are identified as follows:

a) Bulk, Height, Scale and Overdevelopment
b) Impact on Conservation Areas
c) Impact on Foreshore Scenic Protection Area
d) Impact on Neighbours
e) Traffic
f) Whether Marina component is satisfactory


20. The residentially zoned land on the site is in both a Conservation Area and Foreshore Scenic Protection Area. Clause 17 of LEP 20 provides that a person shall not erect a building within a Conservation Area where the building would be visible from a public place or street except with the consent of the council. Before granting consent the council must make an assessment of a number of factors specified in cl 17(2).

21. Clause 18 of LEP 20 provides a person shall not erect a building of two or more storeys within a Foreshore Scenic Protection Area without the consent of council and the council shall not grant consent to such a building unless it has made an assessment of the extent to which the carrying out of the development would effect the aesthetic significance of the foreshore scenic protection area.

22. Clause 10 of LEP 20 sets out density and landscaping requirements for the proposed development. The council contends that under the requirements of LEP 20 only five large units are permissible, not six.

23. The council further contends that the development is less than three quarters of the way to meeting the relevant landscaping requirements of 480 m ² .

24. SEPP 1 objections to both landscaping and density have been lodged.

25. Clause 20(3)(a) of LEP 20 provides that a building shall not be erected on land within a conservation area or Foreshore Scenic Protection Area unless its wall height does not exceed 7.2 metres. The standard is exceeded at some points by over two metres along the eastern boundary and over three metres along the western boundary. A SEPP 1 objection has been lodged.

26. Mr Bingham, for the applicant submits that the issues can be narrowed to issues of merit and the SEPP 1 objections. The council agrees.

Overdevelopment

27. The applicant relies on Sydney Harbour and Parramatta River Development Control Plan to demonstrate that the proposed development will not be an overdevelopment of the site. It says, because the existing development and its bulk is part of the character of the area, to replace the current buildings with a development of a similar bulk, width and height would not alter the character of the area as described in the DCP under Landscape Type 7.

28. Furthermore, the density requirements allow for erection of 5.44 units on the subject site and thus the erection of six units is not excessive.

29. The applicant relies on landscaping within balconies and driveways in order to bring the actual provision closer to the required 480 m ² . It is clear from the definition that such areas of the development are not included in the definition of landscaped development. This is recognised by the applicant. However, the applicant argues that the Court should consider these areas will be effective to satisfy the objective of the standard.

30. The applicant contends that by including all the landscaped areas in the proposed development it is within nine per cent of the standard. The definition of landscaped area is provided in LEP 20:

“landscaped area”, in relation to a site area, means that part of the site area not occupied by any building or buildings (except for swimming pools or open air recreation facilities) which part is or is to be predominantly landscaped by means of the planting of gardens, lawns, shrubs or trees and is or is to be available for use and enjoyment by the occupants of the building or buildings erected on the site area, but does not include that part of the site area used or to be used for driveways, parking areas or clothes-drying areas.


31. The council rejects this submission. Mr Vincent Murphy, Consultant Town Planner, gave evidence that the non-compliance with the standard was clearly unreasonable and unnecessary. He referred to the definition of landscaped area in LEP 20 in order to demonstrate that, even on its earlier estimate, the applicant had severely overestimated the actual landscaping. Mr Murphy stated that the driveways, entry steps and fountain could not be included in any calculation of landscaped area and thus the applicant’s non-compliance with the standard was much greater than stated by the applicant’s consultant, Mr Terry Byrnes.

32. Mr Byrnes relied on the row of fig trees in Duke Street and other trees between the proposed development and neighbouring properties to contend that the landscaping in and around the proposed development was sufficient.

33. The council’s view is that the applicant cannot rely on landscaping on other properties in order to support an objection to the development standard.

34. Mr Byrnes has calculated that the building has an average wall height of 7.7 metres. This, he says, is not significantly greater than the standard of 7.2 metres. He concluded that the SEPP 1 objection should be allowed.

35. Mr Murphy gave evidence that LEP 20 provides an indication as to the intent of the development standard at cl 2(c) as follows:-

(c) to provide for conservation controls with which to protect the urban character, scale and diversity of the Municipality, as follows:-

(i) in the case of dwelling-houses - development consent will be required for the erection or structural alteration of a dwelling-house on the site of an item of the environmental heritage, in a conservation area or in a foreshore scenic protection area or where the dwelling-house is to contain more than 2 storeys;

(ii) in the case of items of the environmental heritage (being those properties which contain buildings of a significant and individual historic or architectural merit, which should be preserved and which accordingly are afforded the highest degree of protection) - development consent will be required for demolition and for the carrying out of both structural and non-structural work and, in determining an application therefore, Council will be required to make a detailed assessment of the significance of such items in their context and of the design changes proposed;

(iii) in the case of conservation area (being those areas of the Municipality which have distinctive historic and townscape qualities that should be preserved and which have been identified as conservation area) - development consent will be required for demolition and for the carrying out of both structural and non-structural work where the work will be publicly visible, and these areas will be subject to a “wall height” limit of 7.2 metres (or the wall height of any higher building designated by the Council);

(iv) in the case of foreshore scenic protection areas (being those areas which are visually prominent from Sydney Harbour and which are zoned residential) - development consent will be required for the carrying out of both structural and non-structural work where the work will be publicly visible, and these areas will be subject to a wall height limit of 7.2 metres (or the wall height of any adjacent building the Council designates as appropriate) in order to limit the height of buildings to the height which generally predominates in the locality and to preserve views; and

(v) in the case of front fences - development consent will be required for the erection of a front fence on the site of an item of the environmental heritage in order to control the proliferation of new fences which are unsympathetic with the character of the neighbourhood and in order to prevent the creation of discordant features of otherwise consistent streetscapes


36. In Mr Murphy’s opinion the excessive wall height contributes significantly to the overall bulk of the building. The wall length also contributes to the overall perception of bulk and scale of the building and there is a need for greater articulation, particularly along the Duke Street facade.

37. The council is also concerned as to the adequacy of setback from Duke Street. It criticises the lack of articulation of the western facade of the wall along the Duke Street alignment. Ultimately it was suggested, that in order to achieve an engineering solution to traffic conflicts at the intersection of Duke Street with Gilchrist Place and Duke Place, part of the footpath and setback along Duke Street may have to be sacrificed.

38. Non-compliance with the relevant development standard can be overcome by the lodging of a SEPP 1 objection. However, mere lodging of the objection is not enough. The applicant must demonstrate to the Court that the application of the development standards in the particular circumstances of this development is both unnecessary and unreasonable.

39. The applicant contends that the application of the development standards in this case would be unreasonable and unnecessary as the objectives of the standards are otherwise met.

40. On the other hand, council submits that non-compliance with the relevant standards contributes to an overdevelopment of the site and is so serious as to warrant refusal of the development. The Court is not satisfied that the objections made pursuant to SEPP 1 should be allowed.

41. The Court agrees with Mr Murphy that the bulk and scale of the building are unacceptable. The wall height, length and lack of articulation contribute to the perception of an inappropriate scale of building. The Court also agrees that the inadequacy of landscaping within the subject site is unacceptable, particularly having regard to the foreshore location.

42. The non-compliance with development standards, particularly in relation to landscaping, is excessive. The areas proposed for landscaping within the site are generally contrived and inadequate. The applicant relies substantially on “borrowing” the benefit of existing landscaping from adjacent areas but in particular from a row of mature fig trees along Duke Street.

43. The proposal demands three SEPP 1 objections in respect of significant non-compliance with development standards critical to the control of bulk and scale and compatibility with other development in the locality. The overall cumulative effect leads the Court to the view that the proposal is an overdevelopment of the site.

Conservation Area and Foreshore Scenic Protection Area

44. The subject site is within both a Conservation Area and a Foreshore Scenic Protection Area.

45. The applicant’s argument is that the development will present as three dwellings and not one continuous building.

46. Mr Robert Staas, the applicant’s Heritage Consultant stated that the proposed development was consistent with and in keeping with the character of the area and claimed that a view of the remainder of the foreshore demonstrated that residential development is not out of character with the Balmain foreshore. Rather, in this location for example, the public parks along the foreshore are inconsistent with the historical character.

47. Both parties agree there is no reason for refusal of the development in terms of architectural form. However, the council argues that the size and bulk of the building will have a detrimental impact on the foreshore and the Conservation Area.

48. The Court agrees that the architectural form of the building provides no reason for refusal. It notes that attention to the style of surrounding buildings in terms of materials and colours has resulted in a sympathetic colour scheme.

49. However the Court agrees with Mr Murphy that the bulk and height of the proposed development will be an intrusive element upon the aesthetic significance of the foreshore within the Conservation Area.

Resident objectors

50. The major concerns of residents of the surrounding area are view loss, sunlight, privacy, traffic and overdevelopment.

51. The concerns about privacy, sunlight and view loss cannot be supported by objective assessment.

52. The issues of traffic and overdevelopment are significant.

Traffic

53. Traffic generation and related safety are a major concern of both council and local residents. Mr Bruce Masson in evidence outlined the traffic plan proposed by the applicant. There are a number of contingencies that need to be resolved in the detail of a final plan.

54. The applicant contends that, because it is prepared to meet a condition to give effect to Mr Masson’s plan at any cost, the Court should not find the absence of a more concrete proposal warrants refusal of the development application at this stage. The applicant suggests the traffic problem can be satisfactorily solved by a condition of consent.

55. The council submits that the proposed traffic changes are not so certain as to be able to be resolved by a condition of development consent. If the Court cannot be certain as to whether the proposed traffic plan can be achieved without significant alteration, then the Court should refuse consent.

56. The applicant has rejected any suggestion for vehicular access to the site off Duke Place because it says it would significantly reduce the capacity of the site to accommodate the number of desired dwellings.

57. Duke Street is unusually narrow and the gradient is steep over the whole of the alignment. Although some incidental benefits might flow out of the traffic control measures proposed by Mr Masson, the underlying necessity for them, when taken with the nature and context of the work required, support the view that access to the required number of parking spaces off Duke Street is not desirable.

58. The gradient at the entry points to the buildings also creates significant difficulties for manoeuvring of vehicles and sight lines.

Maritime Component

59. The proposed development includes a caretaker’s residence and marina office. The existing building on the site incorporates a caretaker’s residence. The council submits that the existence of a marina on the site is not a sufficient reason to justify the construction of a residence which adds to the size of the proposed development.

60. The applicant states that the market value of the units in the development will be substantially increased by the operation of a secure marina on the site. Thus a caretaker is needed to reduce the risk of vandalism or theft of boats. Accordingly commercial reality and commonsense dictates the need for a caretaker to be available.

61. The council raises a doubt in this respect by reference to the plans of the caretaker’s flat which show that the main bedroom is located at the extreme south eastern corner of the unit away from the Marina.

62. It is not necessary to reach a final conclusion in relation to the justification for a caretaker’s residence. However, the connection between the anticipated level of activity on the marina and the demand for a caretaker’s residence is, at best, tenuous. Ultimately in the Court’s opinion the so-called caretaker’s unit has the potential to revert to a use for an independent dwelling unconnected with the marina use.

Determination

63. Primarily by reason of its bulk and size unsupported by sufficient landscaping, the Court is not satisfied that the proposed development is a satisfactory solution to the development of this important but constrained site.

64. The development application for the erection of the residential flat building, marina and caretaker’s residence will be refused.

65. The application, so far as it related to demolition of existing buildings, has been withdrawn.

Orders

66. The formal orders of the Court are:-

1. Development application No. D/1999/128 is determined by refusal of consent.
2. The exhibits may be returned.