Rossell & Anor v Willoughby City Council
[2007] NSWLEC 29
•25 January 2007
Land and Environment Court
of New South Wales
CITATION: Rossell & Anor v Willoughby City Council [2007] NSWLEC 29 PARTIES: APPLICANT
RESPONDENT
Timothy Rossell and Simone Rossell
Willoughby City CouncilFILE NUMBER(S): 10884 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- s 96 Modification to conditions for roof alterations to heritage item, bulk and scale, privacy and streetscape impacts. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 2001DATES OF HEARING: 18/12/2006 and 22/12/2006
DATE OF JUDGMENT:
25 January 2007LEGAL REPRESENTATIVES: APPLICANT
Mr G. Castellan, solicitor
of Ritchie & CastellanRESPONDENT
Mr M. Causer, solicitor
of Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey
25 January 2007
JUDGMENT10884of 2006 Timothy Rossell and Simone Rossell v Willoughby City Council
Background.
1 This appeal was lodged against council's refusal to allow a s 82A Review of a deferred commencement condition requiring the deletion of part of rooftop alterations to a residence at 17 Beauchamp Ave., Chatswood.
2 Various alterations were previously approved in 1999 to the subject dwelling, including the construction of a large double garage generally behind the existing residence. The original proposal included a west-facing gable over the garage, immediately adjacent to the western boundary. However councils conditions of consent required this gable end to be replaced with a hip roof.
3 The appealed condition A of Schedule 1 stated:
A. The proposal shall be amended by deletion of the proposed roof extension on the western side of the rear portion of the dwelling. A skylight may be provided in lieu of that extension, with that skylight to generally form part of the plane of the existing roof at that point. Such a skylight window is to be centrally positioned within the roof plane within which it is located and is to have an area not exceeding two square metres. The proposed attic floor plan is to be adjusted accordingly. Such adjustments will lead to a reduction in habitable floor space within the proposed attic level.
Amended plans detailing these amendments shall be submitted and endorsed by Councils Heritage Architect.
(Reason: Heritage/Bulk/Address non-compliances).
4 The current proposal is to utilise the roof space over the garage for a bedroom. It incorporated an extension to the existing cross-ridge to provide a dormer/gable form facing the eastern and western side boundary and a smaller dormer facing the rear. The dormer was proposed to be setback from the boundary some 1.2m. It contained a double-hung window.
5 The applicant contended that this normal was required to provide sufficient height in the bedroom, relative to the confined floor space within the roof cavity.
6 The issues identified for the appeal can be summarised as follows:
- Whether the deferred commencement consent amounts to a refusal and should be deleted,
- Whether the proposed gable roof extension has an unacceptable impact on heritage significance of the existing dwelling house and the neighbouring property at 19 Beauchamp Ave, Chatswood,
- The merits of the proposed gable roof extension.
The site.
7 No 17 Beauchamp Ave is described as Lot 1 in DP 203579. It is rectangular in shape with a street frontage of 17.9m and the depth of 45.3m.
8 An existing single storey Federation dwelling is situated on the site. The dwelling is listed under Willoughby Local Environmental Plan 1995 as an Item of Environmental Heritage of local significance.
9 The site is surrounded by predominantly single dwelling houses to the south, east and west, which are zoned 2(a) Residential.
Planning Controls
- Willoughby Local Environmental Plan 1995. Under which the subject site is zoned 2 (a) Residential and the proposal is permissible with consent. The site and surrounding area is located within the North Chatswood Heritage Conservation Area. In addition to the subject property, a further Heritage Item identified under the LEP to the of Local Significance is located 21 Beauchamp Ave.
- Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005,
- Willoughby Development Control Plan,
- Building Code of Australia.
The evidence.
10 Detailed evidence on behalf of the applicant was presented by:
- Mr N Kennan, consulting town planner (Exhibit A),
- Mr R Staas, consulting heritage architect.
11 For the council, detailed evidence was presented by:
- Mr I Arnott, council town planner,
- Ms E Fink, council's Heritage architect.
12 An objection was lodged by Ms J Ryan, neighbour from No 19 Beauchamp Ave. This objection concerns the height and bulk of the proposed gable extension because it will result in a loss of privacy, access to natural light and shadow the garage and rear yard area.
13 Both the applicant’s planning and heritage expert supported the proposal, on the basis that the proposed enable extension to the west will:
i. Have virtually no impact on the streetscape of Beauchamp Ave due to its location towards the rear the site;
ii. Have limited visual impact on the setting of the Heritage Item and on its presentation to the public domain;
iii. Not dominate the Heritage Item;
iv. Result in a minor breach of the Building Envelope Control which could be addressed by providing a dutch gable (i e further hipping above the window) in this location, however, this is not the preferred option has it would be uncharacteristic of the architectural style of the Heritage Item;
v. Result in a floor space ratio in excess of the 0.4:1 standard but no greater than that previously approved on the site;
vi. Result in little, if any, opportunity for viewing the proposed dormer/gable from the habitable areas or private open space of the adjoining property to the west due largely to the presence of intervening structures located on the adjoining property.
14 However, these submissions were not accepted by Ms Finn or Mr Arnott, despite joint conferencing. Also, Ms Ryan was not satisfied with the extent of the amenity impacts on her property.
15 Following my consideration of this initial evidence and observations on the site inspection, the parties agreed for the matter to be adjourned to enable consideration of further amendments, which reduced the size and scale of the western, dormer window so as to minimise streetscape and amenity impacts on the neighbouring property.
16 This resulted in the submission of the amended plans in Exhibit C. The amendments provide for the retention of a smaller scale dormer, which is further setback of some 2.1m, to the common boundary. The ridgeline has also been lowered 300mm under the main house ridgeline. The attic window is to have a fixed sash, with the lower part “frosted” to significantly restrict overlooking onto No 19.
17 This increased side boundary setback has the effect of aligning the face of the proposed dormer with the more prominent, existing gable located towards the front of the house. The previous, larger gable was significantly more dominant.
18 Having considered this amendment, they are not opposed by Council. The amendments have also been notified to the neighbour and no further objections received.
Conclusions
19 Having considered the evidence, the submissions and undertaken a view, I am satisfied that these amended plans merit consent. In my assessment, the reduced scale of the dormer, together with its increased setback from its western boundary results in a satisfactory addition to the Heritage Item and relationship with the neighbouring property. Also, in my assessment the streetscape impact is satisfactory, considering this dormer is substantially shielded by the original gable on the house. In this regard, I note Council makes allowance for structures not readily observable from the public domain.
20 As I have noted, no further objections were made to these amendments and the Court has been given assurances that on-site drainage and rainwater reuse system can be designed and constructed, therefore the Court orders are as follows.
Court Orders
1 The appeal is upheld.
2 Development Application No. DA – 2005/714 comprising attic level additions to the dwelling with associated ground level alterations, on Lot 1 in Deposited Plan 203579 known as 17 Beauchamp Avenue, Chatswood is approved subject to conditions of consent in Annexure A.
3 The exhibits may be returned except for 2, 4, 5, 6, A and C.
___________________
- R Hussey
Commissioner of the Court
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