Singer v Leichhardt Council

[2015] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:

Singer v Leichhardt Council [2015] NSWLEC 1025

Hearing dates:

10 February 2015

Decision date:

20 February 2015

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal dismissed

Catchwords:

Development application, impact on adjoining properties, views, overshadowing, bulk and scale

Legislation Cited:

Leichhardt Local Environmental Plan 2013; 19 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; State Environmental Planning Policy No 55 – Remediation of Land; Land and Environment Court Act 1979; Environmental Planning and Assessment Act 1979

Cases Cited:

Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Paul Singer (Applicant)
Leichhardt Council (Respondent)

Representation:

Counsel:
Mr A Galasso (Applicant)

Solicitors:
Mr M Sonter
Gadens Lawyers (Applicant)

Mr M Bonanno, Leichhardt Council

File Number(s):

10905 of 2014

Judgment

1. Mr Singer lodged Development Application D/2014/383 with Leichhardt Council on 30 July 2014 seeking consent to demolish an existing dwelling house and construct a new dwelling at No 18 Gow Street, Balmain. The application remains undetermined and Mr Singer is appealing its deemed refusal.

2. The issues in the case are whether the built form is appropriate in terms of its bulk, height and scale and whether the impacts of the development on the streetscape and adjoining properties, particularly in relation to overshadowing and view loss, are appropriate.

The site and the locality

3. The site is known as No 18 Gow Street and is on the northern side of the street with water frontage to the Parramatta River. It has a frontage of 6.58m, depth of approximately 70.3m and site area of around 515.4sqm. The site falls steeply from the road to the water with a fall of approximately 21.5m.

4. A single storey brick dwelling with tiled roof, boat shed and detached garage currently stand on the site. The boat shed would be retained with all other structures demolished.

5. A one and two storey dwelling house adjoins the site to its east with a five and six storey residential flat building to the west (No 10 Gow Street). Detached and attached dwellings are located on the southern side of Gow Street with a larger multiunit housing development and Birchgrove Public School further to the east.

6. The site enjoys panoramic views of Parramatta River and its northern foreshore, Cockatoo Island and Iron Cove.

Background and the proposal

7. The plans filed with the court propose the construction of a four level building with garage. The structure would be built to the street and side property boundaries and step down the slope of the land.

8. Level 4 is at street level and comprises a garage with car stacker for two cars, front entry, gallery, study, bathroom and bedroom. A lift and staircase at the northern end of the level would connect to the lower levels of the dwelling. The upper part of one of two courtyards separate the garage from the habitable rooms.

9. Level 3 comprises the lower section of the garage, laundry and plant room, courtyard, bedroom, bathroom, study and main bedroom with deck, ensuite and walk in robe and the upper part of the second courtyard.

10. Level 2 comprises a plant room, bathroom, lounge area and library with another plant room, bathroom, courtyard, living room and kitchen/dining room that open onto a deck/outdoor room. Stairs from that deck lead down to a garden area and then a further stairway that provides access to the boat shed, boat slip and jetty.

11. Roof gardens were proposed above each level with clerestories providing additional light to the bathrooms and ensuites. The lift overrun would also extend above the roof line.

12. Translucent glass wall systems are proposed to be incorporated along the side walls to supplement light to the bathrooms and stairway.

13. The roof at its northern end would be cantilevered above the deck with horizontal screens installed across the top two levels and the ground level open. Full height, fixed, angled louvres are proposed at each end of the deck to provide privacy to the dwelling.

The planning controls

14. The site is zoned R1 General Residential under Leichhardt Local Environmental Plan 2013 (LEP) and the proposal is permissible in the zone. Clause 1.2 lists the aims of the plan and 2.3(2) requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the R1 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.

15. Part 4 of the LEP contains principal development standards and those relevant to the application are Clause 4.3A(3)(a) Landscaped Area for residential development in Zone R1; Clause 4.3A(3)(b) Site Coverage for residential development in Zone R1; Clause 4.4 Floor Space Ratio (FSR). Clause 4.6 provides for exceptions to those development standards.

16. The site is within a Heritage Conservation Area and within the vicinity of a number of heritage items and therefore is subject to the provisions of clause 5.10 Heritage Conservation.

17. Other clauses relevant to determination of the application are 5.9 Preservation of trees or vegetation; 6.1 Acid Sulfate Soils; 6.2 Earthworks; 6.4 Stormwater management; 6.5 Foreshore Building Line and 6.6 Development on the foreshore must ensure access.

18. The maximum FSR for the site is 0.7:1, a minimum area of 10% of the site is to be landscaped and this represents 172.8sqm and a maximum site coverage of 60% is permitted. The foreshore building line affects the lower 19.29m of the site.

19. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREPP SHC) apply to the site.

20. Leichhardt Development Control Plan 2013 (DCP) applies to the site with Parts A, B and C containing relevant considerations. The site is located within the Birchgrove Distinctive Neighbourhood and the relevant controls that guide the Desired Future Character (DFC) are:

C1 Development should follow the topography of the area and maintain the single storey scale on the mid slopes and mixed one and two storey scales at the top and bottom of the slopes.

C2 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.

C3 Preserve and where practicable, enhance public and private views over Snails Bay and Parramatta River. Buildings on the waterfront should follow the slope and help preserve view lines by stepping down with the contours.

C4 Promote a balance of landscape to built form in the view of the neighbourhood when viewed from the water.

C5 Conserve the single and double storey, freestanding form, style and materials characteristic to each street……

C8 Maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials…….

C10 Fences should be low open picket style with iron or timber pickets and with metal timber or stone posts….

C12 Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings…..

C15 A maximum building envelope of 6m applies to the neighbourhood……

C18 New development shall maintain the use of hipped, pitched or gabled roof forms and designs shall be complementary to the existing unadorned built form. Flat roofs may be appropriate where the style of architecture is contemporary and view lines may be affected.

C19 Building materials used shall be consistent with the existing character of the streetscape, including rendered and painted surfaces and roof materials such as corrugated iron as well as timber windows….

C21 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. Additionally the rear elevation must be designed so it does not detract from the form, character and scale of the conservation area. The amount of glazing to solid ratio on the rear elevation must be sympathetic to the immediately surrounding development.

The issues

21. The contentions in the case are:

• Whether the proposal represents an overdevelopment of the site and the site is suitable for the proposed development;

• Whether the objection to the development standard for FSR is well founded;

• Whether the extent of non-compliance with DCP controls for side setbacks and building location zone is reasonable or results in adverse amenity impacts to adjoining properties;

• Streetscape and character;

• Whether the development is consistent with the provisions of SREPP SHC;

• View impacts;

• Whether the development is consistent with the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP55).

The evidence

22. The hearing is subject to the provisions of Section 34AA of the Land and Environment Court Act 1979 (LECAct) and commenced as a conciliation conference. That process did not result in resolution of the contentions and the matter proceeded to a hearing in accordance with the provisions of s34AA(2)(b)(i) of the LECAct.

23. The applicant did prepare amended plans that reflected the discussions of the conciliation conference and sought and was granted leave to rely on those plans. The council did not oppose leave being granted and accepted the changes to be “minor” for the purposes of s97B(1) of the Environmental Planning and Assessment Act 1979 (EP&AAct) and accordingly, no order was made in relation to costs.

24. The changes to the plans are summarised as follows:

• Deletion of the roof garden above the garage and consequential reduction in height of that structure by 400mm;

• Deletion of the roof garden above the middle pavilion and consequential reduction in height of that section of the building by 400mm;

• Deletion of the southern clerestory and replacement with a skylight;

• Reduction in floor to ceiling heights on Levels 3 and 4 and consequential reduction in height of that section of the building by 400mm and therefore a total height reduction of the central pavilion of 800mm;

• Shifting the northern wall and roof structures 1m to the south with the areas taken from the northern courtyard (500mm) and the central pavilion (500mm);

• Reconfiguration of stairwell on western boundary and movement of upper stair to the south, incorporating raking of boundary wall from the point where it meets the carport structure of No 10 Gow Street;

• Reduction in height of the entrance portal by 700mm and provision of a 1.5m setback from the street boundary.

25. Evidence was heard on the first day of the hearing from objectors to the proposal. That evidence included a view of a number of properties owned by those residents to allow them to demonstrate the extent of impact they say the development would have on their views, amenity and/or solar access. The view was assisted through the erection of height poles that indicated the extent and height of the proposed structure. The issues raised by objectors are summarised as follows:

• Excessive height, bulk and scale;

• View loss;

• Overshadowing;

• Heritage impacts including view loss to historic shipyards;

• Amenity impacts.

26. To assist the Court in determination of the application, the council facilitated a view of the site from the Parramatta River.

27. Expert heritage evidence has been provided by Mr R Staas for the applicant and Mr B McDonald for the council and forms Exhibit D. They were not required for cross examination.

28. Expert town planning evidence was heard from Mr T Blythe for the applicant with Mr McDonald also providing planning evidence for the council.

29. The heritage experts agree that the existing dwelling has been modified to such an extent that its actual demolition would have minimal impact on the streetscape within the Birchgrove distinctive neighbourhood, the conservation area and desired future character of the locality. Conditions of consent should be imposed that require an archival photographic record of the house prior to its demolition.

30. They disagree as to whether the proposed built form is appropriate in terms of its siting and streetscape impacts. Mr Staas recommended the proposed built form could be reduced in height through the removal of the proposed roof top garden and the reduction in height of the entry portal to reduce the visual impact in the streetscape and these changes have been incorporated into the amended plans. He says the design maintains the ‘gap’ between the garage and the adjoining development to the east at No 20 and allows for a more open view within the streetscape that is similar to the existing.

31. Mr McDonald notes that the existing garage presents poorly to the street and that whilst the height has been reduced to a more acceptable level, he says that because the structure is wider than that existing there is more impact and this is contrary to the provisions of SREPP SHC and the DCP that seek to maintain views. He says that an open carport, depending on its design, may be a more acceptable resolution of the carparking and that the reduced height of the entry portal does not minimise view loss from Nos 15 and 17 Gow Street and that it should be deleted.

32. The planning experts differ in their interpretation of calculating gross floor area and therefore the FSR of the development. Clause 4.5 of the LEP is in the following form:

4.5 Calculation of floor space ratio and site area

(1) Objectives

The objectives of this clause are as follows:

(a) to define floor space ratio,

(b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to:

(i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii) require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio”

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area

In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:

(a) if the proposed development is to be carried out on only one lot, the area of that lot, or

(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area

The following land must be excluded from the site area:

(a) land on which the proposed development is prohibited, whether under this Plan or any other law,

(b) community land or a public place (except as provided by subclause (7)).

(5) Strata subdivisions

The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation.

(6) Only significant development to be included

The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.

(7) Certain public land to be separately considered

For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out.

(8) Existing buildings

The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings……

33. The Dictionary to the LEP includes the following definitions of gross floor space:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a)  the area of a mezzanine, and

(b)  habitable rooms in a basement or an attic, and

(c)  any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes:

(d)  any area for common vertical circulation, such as lifts and stairs, and

(e)  any basement:

(i)  storage, and

(ii)  vehicular access, loading areas, garbage and services, and

(f)  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)  any space used for the loading or unloading of goods (including access to it), and

(i)  terraces and balconies with outer walls less than 1.4 metres high, and

(j)  voids above a floor at the level of a storey or storey above.

34. The difference is their interpretation of whether the garage is included in the calculation of gross floor area. In part (g) of the definition, car parking to meet any requirements of the consent authority and access to that carparking is excluded from the calculation.

35. Part C1.11 of the DCP applies to Parking and at C13 states: Off-street parking spaces are to be provided in accordance with Table C4: General Vehicle Parking Rates. Table C4 nominates parking rates for particular land uses and, for residential uses, includes provision for visitor and resident parking. For a single dwelling house the minimum is nil and the maximum is two spaces with no visitor spaces.

36. Mr McDonald says that because no spaces are required, the area of the garage is included in the calculation of gross floor area whereas Mr Blythe says that because up to two spaces may be provided, the garage can be included.

37. Regardless of whether the garage is included in the calculations, the FSR of the development exceeds the 0.7:1 development standard. The difference between the parties is that the applicant calculates the gross floor area as 375.5sqm whereas the Mr McDonald says it would be an additional 26.932sqm or 402.432sqm. In addition, the council contends that the internalised courtyards with the high boundary walls, whilst not gross floor area for the purposes of calculating the FSR, add to the bulk of the building by the equivalent of 161sqm. The Court notes that this would be reduced through the reduction in width of the northern courtyard by 0.5m.

34. A written objection to the FSR development standard has been prepared as provided for in clause 4.6 of the LEP. The planners do not agree whether that objection is well founded.

35. The experts agree that strict application of the numerical side setback controls under Part C3.2 of the DCP would impose an excessive constraint on development of the site however differ on the extent to which side setbacks should be incorporated in the design to achieve a balance between the site’s development potential and impacts on neighbours and the public domain. They agree that the reduction in the length of the dwelling results in compliance with the building location zone.

36. Mr Blythe says the additional setbacks to the western boundary incorporated into the amended plans are appropriate and result in improvements to solar access to some of the units and also reduce the impact of the bulk of the walls. He says that because the lower units have been constructed below what was natural ground level, they are more vulnerable to any development on the site. Mr McDonald agrees that there is an improvement to solar access, particularly to unit 23 however there is only a marginal improvement to the other units and says there is no real improvement to the bulk and scale of the dwelling when viewed from adjoining properties. In his opinion, the building should be setback at Level 4 1.2m from the western boundary. This would reduce the bulk of the building and maintain the view corridor from the street to the river

37. It is common ground that the pitched roof design called for in the DFC may be problematic in terms of view impacts. They also agree that the development in the vicinity of the site, with the exception of the flat building at No 20, generally present a three storey scale to the riverfront. They disagree whether the development is sympathetic and characteristic in the streetscape and whether it is consistent with the provisions of SREPP SHC. The reasons for the disagreement are set out in the joint report and did not change significantly as the result of the amendments made to the plans.

38. Mr McDonald agrees that the reduction in height of the building has improved the impact of the development on views from adjoining properties so that it is more acceptable however it does not retain and enhance views as required under SREPP SHC. Mr Blythe had taken photographs during the site view and considers that the height reduction provides an appropriate level of view sharing. Mr Blythe detailed what he thought was the extent of change to view impacts (Exhibit J). Mr McDonald says that it would be appropriate to verify that the changes did result in improvements to views and that further change is required. He says the plans before the Court do not satisfy the objectives of the LEP, the council’s planning controls or SREPP SHC.

Conclusion and findings

43. For consent to be granted, I must be satisfied that the objection to the FSR development standard is well founded. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 considered similar provisions to clause 4.6 of the LEP although in that instance, under the provisions of State Environmental Planning Policy No. 1- Development Standards (SEPP1). The maximum FSR for the site is 0.7:1 and the proposal is for 0.729:1. The written objection that has been prepared to accord with the requirements of clause 4.6 of the LEP to support the exception to that development standard forms part of Exhibit A. The objection relies on the most commonly taken approach to the determination of such matters, that it that the application of the development standard is unreasonable and unnecessary in the circumstances of the case.

44. Applying the tests in Wehbe I must have regard to the objectives of the development standard. Those relevant to the application are set out in clause 4.4(1)(a) of the LEP 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,

45. The zone objectives are detailed at [14].

46. The applicant’s grounds for objection to the development standard are:

• the proposal presents a dwelling of similar bulk and scale to that of surrounding dwellings and is aligned with the LEP’s objectives with the departure arising due to the size of the land in comparison to surrounding sites;

• the bulk and scale of the additional 0.29:1 FSR is minimal and acceptable;

• the benefits associated with increased amenity and visual aesthetics for both neighbouring properties and the site viewed from the waterway outweigh the minor nature of the associated impacts;

• the proposed design reflects the character of surrounding development and from street level presents as single storey scale, similar to that of surrounding dwelling houses and therefore contains the consistency of the standard;

• the proposal does not negatively impact the heritage conservation values of the surrounding area, particularly given its one storey representation at street level;

• overshadowing associated with the increased bulk and scale has an acceptable level of impact on surrounding land uses;

• the proposed FSR aligns with the objectives of the development standard;

• the proposal is consistent with the R1 zone objectives;

• the design which includes comprehensive built form landscaping will provide aesthetic benefits when viewed from the waterway and Gow Street, presenting as a contemporary development on Gow Street;

• despite the increase in GFA, the proposal increased the overall landscaped area of the site providing increased amenity for both the site and surrounding context;

47. The objection states that given the nature of the variation no public benefit will be provided by applying the development standard strictly and the proposal presents an appropriate design response, given the surrounding context.

48. Having regard to the evidence, I am not satisfied that the development minimises the impact of bulk and scale of buildings. It is apparent, despite the small numerical non-compliance with the development standard (if I were to accept the applicant’s submission on parking) that the impact of the bulk and scale will detrimentally impact on the amenity of adjoining properties, in particular in relation to the imposing nature of the western boundary wall and its consequential impact on solar access to the adjoining residential unit development. I do not accept that these impacts are either minor or acceptable in the circumstances of the case. Accordingly, I am not satisfied that the development achieves the objectives of the development standard and it is not appropriate to provide for an exception to the FSR development standard.

49. Having determined that it is not appropriate to uphold the objection under clause 4.6, the proposed dwelling cannot be approved. The consequence of this finding makes it unnecessary to consider the merits of the application however, for completeness; I consider that the development as proposed would not be appropriate in the form proposed.

50. Whilst I accept that the amendments made to the plans during the hearing result in an improvement, the changes made do not go far enough to satisfy the council’s planning controls. Further amendments to the design of the development through reduction of its bulk, scale and height particularly when viewed from the adjoining residential flat building are required. The deletion of the entry feature to improve view sharing and the side glass panels to ensure no light spill affectation of adjoining properties would also be appropriate.

51. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application D/2014/383 for demolition of an existing dwelling house and construction of a new dwelling at No 18 Gow Street, Balmain is refused consent.

3. The exhibits, other than Exhibits A, B, F and 1, may be returned.

_________________

Sue Morris

Commissioner of the Court

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Decision last updated: 23 February 2015