Silvius v Leichhardt Council

[2009] NSWLEC 1193

Land and Environment Court

of New South Wales

CITATION:

Silvius v Leichhardt Council [2009] NSWLEC 1193

PARTIES:

APPLICANT
Thom Silvius

RESPONDENT
Leichhardt Council

FILE NUMBER(S):

11192 of 2008

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT CONSENT :- delete condition requiring setback of upper floor and amend condition requiring lower height
impact on streetscape and view loss

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

CASES CITED:

Tenacity Consulting v Warringah [2004] NSWLEC 140

DATES OF HEARING:

23 April 2009

EX TEMPORE JUDGMENT DATE:

24 April 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mrs M Taylor, solicitor
of Bartier Perry Solicitors

RESPONDENT
Ms R McCulloch, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

24 April 2009

11192 of 2008 Thom Silvius v Leichhardt Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This is an appeal against the deemed refusal by Leichhardt Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (DA 07/0306) to demolish the existing house and structures and to construct of a new two-storey house with associated garage and landscaping at 25A Clayton Street, Balmain (the site).

2 The s 96 application seeks to change conditions 3(a) and 3(b).

Condition 3(a) states:
The overall height of the roof of the building is to be lowered from RL 28 to RL 27 excepting the pop-up skylight component which may maintain the proposed comparative height.

3 The applicant seeks to replace this with a condition requiring the maximum height except for the pop-up roof to be RL 27.6.

4 Condition 3(b) states:

The first floor cantilever projecting towards 27 Clayton Street is to be deleted and the extent of the first floor is to be brought back to align with the setback from the boundary with 27 Clayton Street of 5.45m. The fenestration of the first floor facing Clayton Street may be adjusted so that the proposed window nominated as W20 is also relocated further away from 27 Clayton Street, without changing the proportions of styling of the windows.

5 The applicant seeks to delete this condition and revert to the original design, including the cantilever.

6 The council contends that condition 3(a) should remain as the amendment will result in unacceptable view impacts on units 3, 4 and 5/12 Thames Street. Council also contends that condition 3(b) should remain as the amendment will result in a built form that is of excessive horizontal proportion and overly dominant in relation to the other dwellings in the street.

7 Other changes are proposed under the s 96 application but these are not in dispute between the parties.

Site and its locality

8 The site is located on the south-east side of Clayton Street. It has a frontage of 17m and is generally square in shape with an area of about 373.4 sqm. The site is elevated above the street on a rock outcrop and has a part one, part two-storey timber dwelling with pitched roof. There is a carport at the street level.

9 The site adjoins a three-storey multi-unit development to the south-west (12 Thames Street), which is also elevated above the street about one storey. To the north-east there is a single storey dwelling (27 Clayton Street), which is at street level and at a much lower level than the dwelling on the site. To the rear of the site is a townhouse development (14 Thames Street). The street is characterised by one and two-storey houses on small allotments at street level.

Planning controls

10 The site is within the Residential zone under Leichhardt Local Environmental Plan 2000 (the LEP). The proposal is permissible with consent. The site is within the Balmain Heritage Conservation Area. Leichhardt Development Control Plan 2000 (the DCP) is also relevant.

Evidence

11 The Court visited the site and heard evidence from residents who both supported and were opposed to the proposal. Those in support considered that a contemporary building of the bulk proposed was a positive addition to the streetscape. Those who objected (the occupants of units 4 and 5/12 Thames Street) were concerned about the impact of the proposal as approved by council, but considered that the proposed amendments would further impact on the amenity of their units, principally the bulk of the proposal and its impacts on views from their living, dining and kitchen areas. They acknowledge that the proposal would not impact on views from their bedrooms but stated that these areas are not used during the day and that the main areas they use were the second floor living areas.

12 The Court heard expert planning evidence from Ms D Laidlaw, for the council and Mr A Darroch, for the applicant. The architect for the proposal, Mr S Kennedy, provided evidence on the implications of the changes required by condition 3(a). The owner, Mr Silvius, provided evidence on his consultation with the owners of the units in 12 Thames Street and the effect of the changes required by condition 3(a) on his potential views.

Streetscape

13 Mr Darroch considers the proposal responds to the unique characteristics of the site. He stated that the site is much larger and wider than the traditional subdivision and that the horizontal emphasis of the building is acceptable. He referred to other buildings in Balmain on wide sites that had a horizontal emphasis.

14 Ms Laidlaw considers that the proposal should respond to the characteristics of the area. The width of the proposal is greater than its height, which is different to the vertical emphasis of other buildings in the street. She also considers the cantilevered element to be uncharacteristic. She stated that the first floor should line up with the ground floor by being set back 4.5 metres from the boundary. This would remove the northern cantilever and reduce the width of the building and its horizontal proportions.

15 The experts agreed that the proposal did not comply with the side setback requirements in pt B1.2 of the DCP although they disagreed on the extent of non-compliance and the manner in which the controls should be applied. Mr Darroch estimated the side setback requirement in the DCP for a wall height of 6m to be 3.6m but considers that the characteristic setback of the area to be in the order of 1m. He considered the requirement in condition 3(b) to set back the first floor 5.4m, to be unreasonable. He noted that the setback of the south-west first floor was predominantly 1.3m. Ms Laidlaw considered the setback requirements under pt B1.2 of the DCP to be much greater, ranging from 5.2m to 8m depending on how the clause was interpreted. Both experts agreed that some variation to the setback controls would be appropriate.

Findings

16 The approved setbacks of the north-east ground floor is 5.4m. Condition 3(b) seeks to align the first floor with this setback. The s 96 application seeks to reduce the ground floor setback to 4.5 metres with the upper floor setback being 3.1 metres. There is no objection to the reduced ground floor setback but Ms Laidlaw considers the first floor should be set back to align with the new position of the ground floor.

17 The purpose of seeking the increased setback in condition 3(b) is to reduce the bulk and horizontality of the proposal. While I understand that this is a valid concern, I think that the increased setback of the upper floor from 3.1m to 4.5m would do little to address these concerns given the bulk of what has been approved on the site. I therefore accept that condition 3(b) may be deleted.

18 By way of comment I note that the setback of the south-western side to 12 Thames Street has been approved at 1.67m at ground floor and 1.3m at the first floor. Given the relationship of 12 Thames Street to the site, this setback would cause me greater concern than that to the north-eastern side. Although technically a side setback, the orientation of 12 Thames Street is to the north-east over the site and the side boundary operates more as a rear setback from this property. This setback forms part of the approval and is not part of the s 96 application, however it is relevant in considering the impact of the proposal on view loss from 12 Thames Street.

Views

19 The original application sought approval for a parapet height of RL 28 with a skylight above that height. The original assessment report considered this would adversely impact upon views and recommended the parapet height be reduced by 400 millimetres to RL 27.6.

20 After visiting the site, the council imposed condition 3(a), which required a reduction of one metre to RL 27. The s 96 seeks that the parapet height be RL 27.6. The amended s 96 application also relocates the skylight over the voids and changes its form from the original butterfly shape.

21 The Statement of Environmental Effects (SEE), which accompanied the s 96 application states that the reason for seeking not to reduce the overall height of the proposal is that this would effectively remove the potential for views from the site. As such the views would not be shared but enjoyed exclusively by the occupants of 12 Thames Street. Mr Silvius reiterated his concern about potential view loss from his property. He stated that a living area had been located on the first floor to obtain views and considered that any lowering of the first floor of the proposal would impact on his views and therefore not achieve view sharing.

22 The evidence in the joint report of Mr Darroch and Ms Laidlaw did not address view loss from the proposal and Mr Darroch did not put this forward by as a reason why the building should not be reduced in height.

23 In oral evidence, Mr Darroch and Ms Laidlaw stated that view loss from lowering the first floor of the proposal was hard to estimate but there was likely to be an impact on the potential views.

24 Mr Darroch referred to a number of reasons as to why condition 3(a) should not be imposed. These include:

· the proposal’s compliance with the LEP and DCP controls,

· the height has already been minimised. A development on the site which proposed a pitched roof would have a greater impact,

· the view loss is over a side boundary and has been minimised,

· the additional excavation involved,

· the function of the skylight to ventilate the dwelling, the 2.7m ceiling height is recognised as being reasonable to achieve amenity, and

· 12 Thames Street has views from the bedroom level which will not be affected by the proposal.

25 Ms Laidlaw accepted that the building complies with the LEP and DCP controls with the exception of the building location zone (BLZ) and setbacks. However, she considered that the impact on the views to 12 Thames Street did not achieve appropriate view sharing. The affected views are from primary living areas and, while these are over a side boundary, they were the principal outlook for the units. She considered that there were options to reduce the height of the building through a combination of excavation, lowering the floor-to-ceiling height and careful design to limit the depth of the structure, which would mitigate the impact on views. She considered these changes were not unreasonable to impose on the applicant.

26 In Ms Laidlaw’s opinion the proposal to move the skylight to the south-east worsened the view loss rather than improving it. Ms Laidlaw considered that condition 3(a) should be retained or alternatively the height should be reduced to RL 27.45 and the skylight deleted.

27 Both experts assessed the proposal against the principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 but drew different conclusions, which are summarised in their joint report.

Findings

28 The principles in B3.4 of the DCP are to:

ensure existing views and vistas are protected and enhanced where possible,
provide view sharing between new and existing residential development.

29 The controls state that:

· Where views are currently enjoyed from existing buildings or public places, new development is to be designed such that any obstruction to these views is minimised.

· Development should maximise access to views both from within the development and from existing buildings and public places in the area, thus sharing the benefits.

30 The principles in Tenacity are also relevant to consider in relation to view loss. The views particularly from the living areas of unit 5/12 Thames Street, are important to the amenity of the property. The proposal, as approved by council, will impact on these views and I accept Ms Laidlaw’s evidence that the s 96 application will further exacerbate this impact. I recognise that the views are over the side boundary across 25A Clayton Street and that there are views from the bedroom level, including views of the harbour bridge, which will not be affected by the proposal. I also recognise that the development, other than the setbacks and maybe the BLZ, is a complying development. However in noting this, it would appear that the controls are difficult to apply to the site due to its elevated nature and to the residential flat building at 12 Thames Street. An approach that seeks compliance with the objectives of the controls rather than numerical compliance is appropriate.

31 The relevant question, as asked in Tenacity, is whether “a more skilful design could provide the applicant with the same development potential and amenity and reduce the impacts on views to the neighbours?”. The lowering of the proposal to RL 27 would reduce the impact on the view loss to 12 Thames Street. While these views are over a side boundary they are the primary outlook from the living areas of the units.

32 I do not consider that the combination of additional excavation, reduction in ceiling heights and careful design of the structure would place an unreasonable burden on the applicant. I note that there appears to be considerable excavation required to enlarge the garage. Also the first floor comprises a second living room, study, bedroom and bathrooms. The skylight as approved is over the living area and study. I consider that the height of the first floor could be reduced without impacting on the amenity due to the additional height provided by the skylight and the use of the other rooms on this level.

33 In reaching this conclusion, I recognise that the concerns of Mr Silvius that he achieve views from his first floor is a valid concern, just as the concerns from the owners of 12 Thames Street is a valid concern. The controls in B3.4 of the DCP seek to achieve view sharing and to maximise views by both the development and from existing buildings. Lowering the finished floor level of the first floor would impact on the views available to 25A Clayton Street. Unfortunately there is no evidence before the Court to demonstrate the extent of this impact or to assess whether appropriate view sharing by both 25A Clayton Street and 12 Thames Street will be achieved.

34 In the absence of such information I consider that condition 3(a) should be retained with the skylight in its original position. In reaching this conclusion I note that with the reduced height, the relationship of the finished floor level of the first floor of 25A Clayton Street to the overall height of 27 Clayton Street is similar to that which would be achieved between the finished floor level of 12 Thames Street and the height of the parapet at 25A Clayton Street proposed by the s 96 application. Mr Darroch states that this has an acceptable view impact. I also note that the lower height would still exceed the height of the majority of the existing building on the site, however, the skylight would in a similar location to the existing two-storey element and be within the view that is already blocked by that element.

35 The onus is on the applicant to demonstrate any impacts on views to his property and to substantiate that unacceptable view sharing will not be achieved by the reduction in height required by condition 3(a). This has not been done. I note that there has been sufficient opportunity for the applicant to demonstrate his concerns in respect of view loss.

36 The applicant is to amend condition 3(a) or submit amended plans, which retain the skylight in its approved position and the overall height of the building as RL 27.

37 The orders of the Court are:

1. The appeal is upheld in part and dismissed in part.
2. The application under s 96 of the Environmental Planning and Assessment Act to amend development consent (DA 07/0306) to demolish the existing house and structures and to construct a new house with associated garage and landscaping at 25A Clayton Street, Balmain, is approved. The consent is modified as set out in Annexure A.
3. The exhibits, except exhibits 2, 4 and A, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
ljr