Rahe v Inner West Council

[2022] NSWLEC 1371

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rahe v Inner West Council [2022] NSWLEC 1371

Hearing dates:

6 July 2022

Date of orders:

13 July 2022

Decision date:

13 July 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

(1) The appeal is upheld

(2) Leave is granted for the Applicant to amend the Application Class 1 so as to rely on the amended materials included at Annexure “A”.

(3) The Applicant’s written request, prepared by Weir Phillips Heritage dated 23 June 2022, to vary the floor space ratio development standard of clause 4.4(2B)(d)(ii) of the Leichhardt Local Environmental Plan 2013 (pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013) is upheld.

(4) Development Application number DA/2021/0014, as amended, for demolition of the existing dwelling, construction of a two-storey dwelling house above a basement on land identified as Lot 10 in Deposited Plan 1272298 and known as 38 Denison Street, Rozelle, be approved subject to the conditions included at Annexure “B”.

(5) The exhibits are returned, other than exhibits C and 1 which are retained.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – floor space ratio – streetscape

Legislation Cited:

Leichhardt Local Environmental Plan 2013, cll 4.3A, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Chahrazad Rahe (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
Inner West Council (Respondent)

File Number(s):

2022/78262

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Development Application DA/2021/0014 was lodged with Inner City Council on 13 January 2021 seeking consent for demolition of an existing dwelling, removal of a tree fern and construction of a two storey dwelling above basement garage and swimming pool. The application was refused by the Inner West Local Planning Panel and the applicant is appealing that decision.

2. The applicant has prepared amended plans to address the contentions in the case. It is those plans before the Court, and it is the Council’s position that the amendments made address all of the contentions raised in the Statement of Facts and Contentions filed on 4 May 2022. The Council does not oppose the grant of consent and submits there are no reasons why consent should not be granted.

The proposal

3. The application proposes demolition of a single storey brick and tile cottage, removal of a tree fern, construction of a two storey dwelling above a basement garage and construction of a swimming pool.

4. Access to the basement is provided from a new driveway crossing at grade off Denison Street into a doorway that has the appearance of a garage door. The car would enter the building, proceed to a car lift and be transferred to the basement directly below. A turntable would be provided within the basement to facilitate forward movement of vehicles onto and from the site. In addition, storage areas and plant would be contained within the basement with a stairway providing access to the ground floor.

5. The ground floor of the dwelling would contain the car lift void, a guest bedroom, shower room, and open plan kitchen/living/dining area. A deck and swimming pool are proposed within the rear yard of the site. Three bedrooms, a bathroom and ensuite are proposed on the first floor.

6. The proposed dwelling would be constructed to the side street property boundary with Evans Street and at ground level to the site’s northern boundary shared with No. 36 Denison Street, where, at first level, the dwelling is setback 900mm. A short setback to Denison Street is proposed, according to the evidence to mirror a former corner shop on the opposite corner of Denison and Evans Street.

The site and locality

7. The site is located on the northern corner of Denison and Evans Street, Rozelle and is an irregular shaped lot with frontage of 12.54m to Denison Street, secondary frontage of 28.13m to Evans Street, rear boundary of 6.4m and side boundary of 27.44m resulting in a site area of 255m². It is relatively flat with a fall from the rear to Denison Street of approximately 1m, having apparently been excavated previously with the development of the existing dwelling. Accordingly, the rear yard of the site is currently approximately 1.5m – 1.8m below the level of the Evans Street footpath.

8. A single storey brick and tile dwelling house stands on the land. A modern two storey dwelling house is located adjacent and to the north of the site with an older style former corner shop on the opposite corner.

9. Development in the vicinity of the site comprises a mix of modern two storey dwelling houses, older style cottages and terrace housing.

10. The site does not contain an item of environmental heritage and is not within the vicinity of an item, however the rear boundary of the site adjoins the Evans Street entrance to The Valley Heritage Conservation Area.

Planning controls

11. The site is zoned R1 General Residential pursuant to the provisions of Leichhardt Local Environmental Plan 2013 (LEP). A dwelling house is permitted with consent in the zone. The Council submits the application is consistent with the objectives of the R1 zone.

12. Clause 4.3A of the LEP is in the following form:

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).

13. According to the evidence, the amended plans provide for a landscaped area of 53.9m² and site coverage of 153m² or 60% thereby complying with those development standards relevant to the site.

14. The maximum floor space ratio (FSR) for the site is, pursuant to the provisions of cl 4.4(2B)(d)(ii) of the LEP, 0.8:1. It is common ground that the FSR of the proposal is 0.92:1 and therefore non-compliant with the development standard. The applicant relies on a written request pursuant to cl 4.6 of the LEP, The Council submits the variation in the case is warranted and supports upholding the request.

15. The parties have considered the provisions of cl 5.10 of the LEP due to the proximity of the site to the Heritage Conservation Area to the northeast of the site. The amended plans have been prepared to address this fact and the experts in the case agree that the design of the building is an appropriate response to its location.

16. Pursuant to the Acid Sulphate Soils Map of the LEP, the site is classified as Class 5 acid sulphate soils land. Whilst located within 500m of Class 2 land, the proposal does not involve works below 5m Australian Height Datum (AHD) and will not lower the water table below 1m AHD on adjacent Class 1, 2, 3 or 4 land. Therefore, the proposal does not require consent under cl 6.1 of the LEP and an acid sulphate soils management plan is not required.

17. The application includes works that are defined as earthworks under the LEP. Pursuant to cl 6.2(3) of the LEP, prior to the grant of any development consent for earthworks the consent authority must consider the earthworks matters identified under (a) – (h) of the subclause. The evidence available to the Court is that the matters have been sufficiently addressed through the information provided with the amended application and included agreed conditions of consent.

18. Pursuant to cl 6.4(3) of the LEP, development consent must not be granted unless the consent authority is satisfied of the stormwater management matters identified under (a) – (c) of the subclause. The evidence provided to the Court is the proposal satisfactorily addresses all of the relevant matters and it can be concluded the development will have no adverse impacts subject to imposition of the agreed conditions of consent.

19. Leichhardt Development Control Plan 2013 applies to the site and, according to the Council’s expert, the design of the development is compliant or consistent with the controls and the objectives of those controls.

The contentions

20. The original contentions in the case related to excessive FSR and site coverage, inadequate landscaped area, inappropriate design and inadequate information. All of the contentions have now been resolved to the Council’s satisfaction through submission of additional information and the amended plans.

The evidence

21. The uncontested evidence is that the application in the form before the Court is an appropriate response to the Council’s planning controls and the locality of the site.

The clause 4.6 written request.

22. As the FSR of the proposal exceeds the maximum 0.8:1 allowed under the LEP, consideration of the written request and the terms of cl 4.6 of the LEP is required.

23. The evidence is that the extent of non-compliance with the FSR equates to the parking space that is provided within the basement. That space is entirely below ground and accordingly, does not contribute to the bulk or scale of the building.

24. Clause 4.6(3) of the LEP requires consideration of a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

25. I have considered the written request and, having regard to the information provided, I am satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, as required by cl 4.6(4)(a)(i) of the LEP, I am satisfied the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3).

26. Clause 4.6(4)(a)(ii) requires, before consent can be granted, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

27. The objectives of the FSR control are as follows:

(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,

(b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.

28. In view of the extent of compliance with all of the relevant planning controls, other than FSR and the fact that the extent of the breach in FSR is limited to the area of a parking space in a basement, an area that is not visible from a public place, I am satisfied that the objectives of the control are met.

29. The objectives of the R1 General Residential zone are:

• 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.

30. Having regard to the evidence, the location of the site and its context and the design of the dwelling, I am satisfied the proposal is consistent with these objectives.

31. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the FSR development standard.

Conclusion and findings

32. Having regard to the evidence and my findings in regard to non-compliance with the FSR development standard, there are no reasons why consent should not be granted.

33. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable, and that the site is suitable for the development as proposed.

34. Matters raised by persons who made submissions to the Council concerned traffic, parking, privacy, landscaping, bulk and scale, lack of open space, overshadowing, noise, character and heritage. It is apparent that the majority of these issues have been addressed through the amended plans. I have considered these issues and the advice of the Council and, on the basis of that evidence and the agreed conditions of consent, am satisfied that the proposal is satisfactory and that the impacts can be appropriately managed.

35. For these reasons, I am satisfied that consent should be granted.

36. The Orders of the Court are:

1. The appeal is upheld

2. Leave is granted for the Applicant to amend the Application Class 1 so as to rely on the amended materials included at Annexure “A”.

3. The Applicant’s written request, prepared by Weir Phillips Heritage dated 23 June 2022, to vary the floor space ratio development standard of clause 4.4(2B)(d)(ii) of the Leichhardt Local Environmental Plan 2013 (pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013) is upheld.

4. Development Application number DA/2021/0014, as amended, for demolition of the existing dwelling, construction of a two-storey dwelling house above a basement on land identified as Lot 10 in Deposited Plan 1272298 and known as 38 Denison Street, Rozelle, be approved subject to the conditions included at Annexure “B”.

5. The exhibits are returned, other than exhibits C and 1 which are retained.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (121852, pdf)

Annexure B (259036, pdf)

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Decision last updated: 13 July 2022