Stancliffe R and Anor v Marrickville Council
[2007] NSWLEC 633
•24 September 2007
Land and Environment Court
of New South Wales
CITATION: Stancliffe R and Anor v Marrickville Council [2007] NSWLEC 633 PARTIES: APPLICANT:
Roger Stancliffe and Pat Hodges
RESPONDENT:
Marrickville CouncilFILE NUMBER(S): 10641 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Non-compliance with the side boundary setbacks;
Should not imitate a period building;
Opportunity to provide a contemporary building in place of the demolished improvements.LEGISLATION CITED: Marrickville Local Environmental Plan 2001, (MLEP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 24 September 2007 EX TEMPORE JUDGMENT DATE: 24 September 2007 LEGAL REPRESENTATIVES: APPLICANT:
Mr P J Duffy, solicitor with
Mr M J Higgins, agent
SOLICITORS:
P J Duffy & AssociatesRESPONDENT:
Mr G Christmas, Principal Solicitor
SOLICITORS:
Marrickville Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
24 September 2007
10641 of 2007 - Roger Stancliffe and Pat Hodges v Marrickville Council
JUDGMENT
1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Marrickville Council (the council) to refuse a development application to demolish the existing improvements (except for shed in the rear yard), remove trees and to erect a two-storey dwelling house at Lot 31 in DP 1280, being No 18 Lincoln Street, Dulwich Hill.
2 I visited the land in company with the parties on the morning of the on-site hearing.
3 I have concluded that the application should succeed, as the proposal would be a worthy replacement of the existing building on the land when considered against the council’s planning controls.
The land
4 The land is situated on the eastern side of Lincoln Street, at the southern cul-de-sac end of Lincoln Street. It is rectangular in plan shape with a frontage (and rear) of 12.19m, side boundaries of 40.23m and an area of 490m2.
5 Erected on the land is a single-storey and two-storey dwelling house, with a detached shed/ garage at the rear. The existing dwelling is setback around 4m from the western front alignment to the front wall and is built to the southern boundary. The dwelling is not heritage listed and is not within a urban conservation area.
6 Adjoining on the northern side is a two-storey dwelling house at No 16 Lincoln Street and on the southern side is a single-storey dwelling house at No 20 Lincoln Street. Both adjoining dwelling houses have zero setbacks to one side boundary. No 16 Lincoln is built to the southern boundary and No 20 Lincoln is built to the northern boundary. At the rear, fronting Wardell Road is another dwelling house.
7 A large tree is on the adjoining property at No 20 Lincoln Street close to the eastern façade of the existing dwelling and near the common boundary with No 18 Lincoln Street.
8 Lincoln Street comprises a mixture of single-storey and two-storey buildings dwelling houses, and some have been altered in recent years. Eleven out of fifteen dwellings in the street are built to one side boundary.
Relevant planning controls
Marrickville Local Environmental Plan 2001, (MLEP)
9 Under the provisions of the MLEP the land is zoned Residential 2(A) and the proposal as a dwelling house is permissible with consent.
10 The relevant clauses under the MLEP are:
· Clause 10 (zoning);
· Clause 58 (waste management); and
· Clause 59 (energy, water and stormwater efficiency).
Marrickville Development Control Plan No 35 - Urban Housing Volume 1, (DCP35)
11 The general aims and objectives of DCP35 are:
1. To provide more details on the residential controls contained in the Marrickville Local Environmental Plan, 2001 (MLEP2001).
2. To provide detailed design objectives, and controls, which encourage innovative design that positively, responds to the character and context of the locality.
3. To encourage high quality urban design outcomes.
4. To maintain and encourage compatible architectural styles within residential areas.
5. To encourage restoration and sympathetic alterations and additions to existing period houses in a manner that retains and enhances their architectural character and streetscape presentation.
6. To promote development that responds, enhances and contributes to Marrickville’s heritage, comprising items of environmental heritage, conservation areas, special character areas and landscape elements.
7. To enhance the quality of life and promote the well-being of the local community.
8. To encourage residential development, which is sensitive to the local, environment, socially responsive, promotes a safe living environment and makes better us of existing infrastructure.
9. To ensure that new development considers the principles of ecologically sustainable development, in particular energy, water and stormwater efficiency, solar access waste reduction and local bio-diversity.
10. To ensure that the impact of urban housing on the amenity of surrounding properties and the streetscape is a prime and initial consideration in the preparation and assessment of development proposals.
12 Of particular relevance are Parts 2B – Built form and character; Part 4 – Supporting design advice. Under Part 2B – B2 that deals with building setbacks for lots with frontages greater than 12m, as is the present, the minimum distance from the side boundaries is for two floors 1.5m, [Exhibit 3, p 35]. However, under Part 4 setback and siting it is stated, [Exhibit 3, p 94]:
- Ensure that built forms, and the gaps between buildings, maintain the established rhythm of buildings and spaces.
13 Also under B2, [Note: Exhibit 3, p 34]:
- Building to side boundaries for a proportion of the site may be appropriate to maintain the continuity of building facades in uniform streets or where the allotment is narrow and it is impracticable to design a workable and functional living area. In such cases the applicant must demonstrate that the impact to the amenity of adjoining premises is minimal.
14 Other planning controls include:
· Marrickville Development Control Plan No 19 - Parking Strategy, (DCP19);
· Marrickville Development Control Plan No 27 - Controls for Site Waste Minimisation, (DCP27); and
· Marrickville Development Control Plan No 32 - Energy Smart Water Wise, (DCP32).
The proposal and its history
15 Development application No 2006/00212 was lodged with the respondent council on 9 May 2006 to demolish the existing improvements (except for the shed in the rear yard), remove trees and to erect a two-storey dwelling house on the land.
16 The proposed dwelling would have a floor area of 225m2 (117m2 and 108m2 to ground and first floors respectively). The floor space ratio (FSR) would be 0.57:1 (including the shed) and would comply with the council’s requirement of 0.6:1 FSR. The proposed site coverage would be 251m2 or 51% of the site area. Thus the site coverage would be 1% over the requirement. On-site parking is proposed via a side drive-through.
17 The proposal would be built 240mm off the blank sidewall of the adjoining property at No 20 Lincoln Street, in much the same location as the existing dwelling’s sidewall that is built to the side boundary. Thus on the southern side of the proposal would maintain the appearance of the presently existing spacing of buildings in the street. It would extend on the ground floor around 1m further to the east than the existing building and closer to the tree on the adjoining property, however the council did not raise issue with this. On the first floor the setback from the eastern boundary is similar to that of the existing first floor setback. The proposal would be set 1.072m off the northern boundary on the other side of a drive-through.
18 During the hearing Mr Duffy, solicitor for the applicant, indicated that his client would be prepared to remove part of the shed at the rear to bring the site coverage into compliance with the 50% coverage requirements.
Notification
19 The application was notified by way of a newspaper advertisement, an on-site notice and letters sent to adjoining and neighbouring properties between 11 May 2006 and 30 May 2006, and the council received one submission. The owner of the adjoining premises at No 16 Lincoln Street raised concerns with:
i) Privacy impacts due to limited separation between buildings.
ii) Possible adverse impacts on energy efficiency.
iii) Loss of a building that has been in existence for about 120 years.
iv) Excessive floor space.
v) Loss of trees reducing a sense of privacy between properties.
The council’s decision
20 On 21 June 2006, the application was considered by the council’s Development Assessment Panel, (DAP), which raised the issue that:
· the development did not comply with DCP35 in terms of streetscape, height and setbacks; and
· the quality of the design of the infill building was not sufficient to warrant demolition of the existing building.
21 On 14 July 2006, the applicant was advised that the DAP considered that the application should be refused.
22 On 17 July 2006, the application was refused under delegated authority for reasons reflected in the statement of contentions.
The hearing
23 The appeal was filed on 9 July 2007 and is against the decision of the council to refuse the application. The council also refused a s 82A review.
24 At the hearing the Court heard evidence on behalf of the respondent council from Ms V Holtham, architect and urban planner of Marrickville Council.
25 On behalf of the applicant Mr S F D McMahon, urban planner, gave evidence.
26 Mr K Smith, Development Assessment Officer for the respondent council, prepared the statement of basic facts dated 2 August 2007.
The contentions
27 On 2 August 2007 the council filed a statement of contentions:
1. The scale and proportion of the proposed development is inappropriate and contrary to the controls and principles of the Marrickville Development Control Plan No. 35 - Volume 1 (‘the DCP’).
- Particulars:
(a) The required side boundary setbacks are 1.5 metres - Part 2B, Section B2, clause C2.
(b) The proposal involves the vertical projection of a floor plan, which extends the full width of a double fronted site and results in an over-development in relation to the subject site and surrounding development - Part 4, Section E: scale & proportion.
(c) The translation of traditional floor to ceiling proportions is an unsuitable model for contemporary development and results in an excessive height for the proposed development - Part 4, Section E: Architectural Control Lines.
- Particulars:
(a) The proposal attempts to imitate the characteristics of a traditional Victorian terrace through the replication of the finishes, material, proportion, scale and form - Part 4, Section E: Style & character.
(b) Such an approach is inappropriate for a contemporary infill development - Part 4, Section C, clause P3.
(c) The proposed development would detract form those period dwellings in the street, which contribute to the streetscape character - Part 4, Section C, clause P3.
(d) It would be more preferable to maintain and restore the existing Victorian terrace (that is reasonably intact) than construct a replica-style dwelling.
28 The following emerged as the salient issues:
· Non-compliance with the side boundary setbacks;
· Should not imitate a period building; and
· Opportunity to provide a contemporary building in place of the demolished improvements.
The evidence and findings
Non-compliance with the side boundary setbacks
29 The council required side boundary setbacks of 1.5 metres in accordance with DCP35, Part 2B, Sec B2, cl C2, [Note: Exhibit 3, p 35]. Ms Holtham supported this requirement, [Note: Exhibit 1, p 3] and believed that:
- …the DCP35 requirements for side boundary setbacks relate proportionately to the width of an allotment, i.e. a dwelling on a wider allotment requires greater side boundary setbacks. Non-compliance with these requirements can result in a proposal having an inappropriate visual dominance within the context of adjoining development and a streetscape. This is considered to be the case for the subject dwelling, which proposes respective northern and southern side boundary setbacks of 1072mm and 240mm, instead of a minimum of 1500mm on both sides.
30 Mr McMahon considered the proposal met the DCP35 objectives relating to side setbacks and stated:
- The existing development within the subject site exhibits a zero side setback along the southern side boundary to No. 20 Lincoln Street. The proposed development maintains this zero setback…
The existing adjoining development to the north, No 16 Lincoln Street, exhibits a similar zero side setback to the subject site, which extends further than that which exists, and is proposed, within the subject site.
Furthermore, this pattern of zero side setbacks to the southern side boundary would appear to be replicated by 11 of the 15 existing dwellings within Lincoln Street (refer to the photomontages and aerial photographs…). Thus the proposed zero side setback is consistent with existing side setbacks in Lincoln Street.
The introduction to Part B2 of the DCP35 notes on Page 34:
- “Building to the side boundaries for a proportion of the site may be appropriate to maintain the continuity of building facades in uniform streets ... In such cases the applicant must demonstrate that the impact to the amenity of adjoining premises is minimal”.
31 Mr Duffy submitted that the non-compliance with the 1.5m-setback from the southern side boundary would be reasonable, not significant in the circumstances of the case and the proposal with a 240mm setback from the southern boundary would be acceptable. However, if the council sought a zero setback the applicant would be content to comply. He submitted that the proposed side setback goes to the goal of maintaining consistency of spacing of buildings in the streetscape.
32 Mr Christmas submitted that the council maintains its concerns for the proposed southern setback. He agreed that zero setbacks might be common in the street but according to DCP35 for a double width block such as the subject land, the setback should be 1.5m. He submitted that there was no justification given by the applicant for departure from these requirements.
33 I accept the evidence of Mr McMahon that the southern side setback of the proposed would be consistent with the established side setbacks in the street and achieves the objective of integrating new development with the established character of the street. DCP35 permits some flexibility in the application of its controls in order to encourage innovative design that positively responds to the character and context of the locality and to encourages high quality urban design outcomes.
34 I accept the evidence of Mr McMahon that despite a negligible increase in shadow to No.20 Lincoln Street to the south of the land, that adjoining property would not be deprived of light and ventilation such that the application should be refused consent.
35 I accept the evidence of Mr McMahon that the proposed southern side setback would have no significant impact on established trees and vegetation and the proposal would ensure adequate separation between buildings for visual and acoustic privacy.
36 I reject the evidence of Ms Holtham and I consider the proposal would appropriately maintain the continuity of building facades in the street.
Should not imitate a period building
37 The council was concerned that the proposal attempts to imitate the characteristics of a traditional Victorian terrace through the replication of the finishes, material, proportion, scale and form contrary to Part 4, Sec E: Style & character, [Note: Exhibit 3, p 94]. During the hearing it transpired that this contention related only to the proposed imitative historical detailing of the columns, the balcony frieze, balustrades and front fences. Ms Holtham stated that she would be content if the first floor balustrade were finished in a contemporary material such as glass and the other details were either removed or simplified.
38 Ms Holtham believed that the design’s adoption of Victorian characteristics would be unsuitable and contradictory to the DCP35. She referred to the DCP35 statement that:
- It is far better to build in accordance with present-day architectural practice and standards, and reinterpret the qualities of a street in a manner, which respects and reinforces the integrity of original period buildings. New building work can be individual and contemporary while still exhibiting a scale, form and character similar to that of adjoining development. There are some instances, however, where replication of authentic details may be unavoidable, and in these cases this should be carried out with a maximum degree of authenticity. - Part 4, Sec C cl P3, [Note: Exhibit 3, pp 87-8].
39 Mr McMahon considered that the proposal adequately responds to the stated intent of DCP35 and to the council’s general strategic direction. He noted:
- …that the broad principles in DCP35 that seek contemporary styled infill development are presented in the context of many other references and numerous detailed objectives and controls in Part 2B – ‘Built Form and Character’ that seek protection of existing built form character. When these detailed controls are taken in their entirety and adopted in good faith by building designers, they erode the scope for the application of contemporary architectural style and conspire to exclude any building styles, forms, materials and colours, which essentially fail to replicate the prevailing built form character.
…that, in light of this apparent conflicting policy context, it is appropriate that the proposed development defers to, and addresses, the relevant fundamental objectives of the DCP35. These are presented variously in Part I of DCP35 and generally seek the preservation of existing built form character. For example, on page 13:
The intent of this DCP and Council’s general strategic direction is to ensure that the essential desirable physical and social characteristics of Marrickville are not lost, by:
· conserving Marrickville’s physical character where relatively intact and of good quality;
· applying the principles of this character to new development; and
· maintaining Marrickville's traditionally diverse population and housing mix.
40 Mr Duffy submitted in respect to this question of whether the proposal is an imitation of a period building, the applicant does prefer the look of the Victorian terrace and absence anything else he or she should be allowed to satisfy that desire. He submitted there are conflicting DCP35 provisions and these militate against providing a design that is contemporary in style.
41 Mr Christmas submitted in respect of the question of the imitation of period dwelling that the provisions of DCP35 are the starting point, [Note: Exhibit 3, p 87, para P3]. He also submitted that the applicant is presented with a ‘blank canvas’ and that would provide the skilful designer the opportunity to prepare a design for a building other than in mock Victorian terrace style.
42 He submitted that Ms Holtham states in Exhibit 1 at para 3.4 that the proposal would be of a style that would be contradictory to the aims of DCP35. He added that the applicant has not justified to the Court why the provision concerning style should be ignored. He submitted that it is clear that what is proposed is imitative Victorian style and would not be appropriate in the street.
43 Mr Christmas submitted that in Exhibit 3 p 94 under the heading of ‘Style and character’ imitative historical detailing is stated as being “highly undesirable”.
44 Mr Duffy in reply submitted that his client sought a contemporary style of building in concert with other principles. [Note: Exhibit 3, P 9 para 3.5].
45 Part 4 of DCP35 is headed ‘supporting design advice’ and as such it is not mandatory, it might be strongly didactic and the opinion of the author and the council, but not binding. Thus, the requirement to avoid imitative replication of architectural styles and features needs to be considered along with all the other provisions in DCP35. I accept the evidence of Mr McMahon in this regard and consider that the applicant has respected the thrust of the intent of DCP35 and the council’s general strategic direction for development in its area. I would not refuse the application for this reason. I consider the proposal, if well finished, might set a desirable precedent for the development of land in Marrickville.
Opportunity to provide a contemporary building in place of the demolished improvements
46 Mr Christmas submitted that the evidence of Ms Holtham would convince the Court that if the existing improvements were demolished there is an ideal opportunity to replace the existing building with a contemporary building.
47 Mr Duffy explained that his client does not want a contemporary building however, the proposal would meet the requirements of Exhibit 3, p 87, P3 as it is proposed to build in accordance with present-day architectural practice and standards, and re-interpret the qualities of a street in a manner which respects and reinforces the integrity of original period buildings.
48 I accept the thrust of Mr Duffy’s submission in this regard and would not refuse the application for this reason.
Other matters
49 The council considered that as the proposal would extend the full width of a double fronted site it would result in an over-development of the site and would be likely to overwhelm surrounding development and thus would be contrary to Part 4, Sec E: Scale & proportion, [Note: Exhibit 3, p 93].
50 The council was also concerned that the translation of traditional floor to ceiling heights would be an unsuitable model for contemporary development and result in an excessive height for the proposed development and contrary to Part 4, Sec E: Architectural Control Lines, [Note: Exhibit 3 p 95].
51 I consider the floor to ceiling heights appropriate for a contemporary building and I am not persuaded that the proposal is an overdevelopment of the land. The proposal complies with the floor space ratio applicable to the land area.
52 For the above reasons, the appeal is upheld.
Conditions
53 The conditions are those in Exhibit 5 as amended during the hearing to avoid repetition.
Orders
54 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2006/00212 lodged with the respondent council on 9 May 2006 to demolish the existing improvements (except for shed in the rear yard), remove trees and to erect a two-storey dwelling house at Lot 31 in DP 1280, being No 18 Lincoln Street, Dulwich Hill, is approved subject to deferred commence Conditions 1 to 3 and Conditions 1 to 52 in Annexure A.
3. The exhibits except for Exhibits A, B and 5 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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