Tierney v Leichhardt Municipal Council
[2008] NSWLEC 1361
•21 August 2008
Land and Environment Court
of New South Wales
CITATION: Tierney v Leichhardt Municipal Council [2008] NSWLEC 1361 PARTIES: APPLICANT
RESPONDENT
Michelle Tierney
Leichhardt Municipal CouncilFILE NUMBER(S): 10278 of 2008 CORAM: Bly C - Taylor C KEY ISSUES: Development Application :- Construction of a 2-storey dwelling, building footprint, bulk and scale, neighbour amenity (privacy, overshadowing and views), landscaping, compliance with other planning controls (including floor space ratio and landscaped area), streetscape and character and adequacy of private open space. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
State Environmental Planning Policy No 1-Development Standards
Leichhardt Development Control Plan 2000DATES OF HEARING: 21/08/2008 EX TEMPORE JUDGMENT DATE: 21 August 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr G. McKee, solicitor
of McKees Legal SolutionsRESPONDENT
Ms J. Reid, solicitor
of Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
Taylor C10278 of 2008 Michelle Tierney v Leichhardt Municipal Council21 August 2008
This decision was given extemporaneously on site. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to a development application for the demolition of an existing dwelling and the construction of a new two-storey dwelling with basement at 110 Darling Street, Balmain East. The basement will provide car parking for two vehicles utilising a car stacker.
2 The hearing was conducted on site and at its conclusion brief reasons were given extemporaneously, explaining our decision to approve the application. This Judgment includes background information and elaborates upon those reasons.
3 The rectangular shaped site comprises Lot 5 DP 320149, has an area of 360.4 sq m, a frontage of 9.157 m and slopes to the rear by approximately 2.6 m. A number of trees on the site are to be removed.
4 The locality is characterised by low-density semi-detached and detached dwellings of mixed form and character. Beyond the rear boundary of the site is a steep landscaped embankment and the NSW Water Police headquarters over which views of the harbour are available. There is a bus zone in front of the site.
5 The site is included in the Residential zone under Leichhardt Local EnvironmentalPlan 2000 and in this zone the proposal is permissible with development consent. The site is also included in a heritage conservation area. Clause 19(2) of the LEP imposes a maximum floor space ratio of 0.7:1 and because this is exceeded, an objection pursuant to State Environmental Planning Policy No 1-Development Standards has been provided. The landscaped area requirement in cl 19 (3) of the LEP is complied with.
6 Also applicable is the Leichhardt Development Control Plan 2000. Relevant provisions in the DCP deal with character, heritage streetscapes, building location zone and car parking.
7 Several of the issues of concern to the respondent council in the Statement of Facts and Contentions were not pressed. The remaining contentions are:
- The proposed replacement dwelling represents a significant exceedence of the floor space ratio under the LEP and the SEPP 1 objection is not supported.
- The proposed development does not accord with the building location zone controls under Part B1.2 of the DCP and results in potential adverse amenity impacts.
- The proposed replacement dwelling does not accord with the suite of controls within the LEP and the DCP and is considered an unsuitable design for the site having regard to streetscape and heritage conservation considerations.
8 The council also invited the Court to take into consideration the concerns expressed by resident objectors. These concerns essentially include:
- Overdevelopment of the site and non-compliance with applicable planning controls.
- Adverse amenity impacts including overshadowing, noise and privacy and loss of views for neighbouring properties.
- Adverse impacts on the heritage streetscape.
9 In relation to the exceedence of the floor space ratio, the SEPP 1 objection notes that the actual exceedence in terms of floor space is about 33 sq m and if the basement were excluded, the actual building that appears above ground level would have a complying floor space ratio. Recognizing that there are no stated objectives for the development standard in the LEP, the objection contends that the purpose of the standard is to control density, scale and building bulk so that new development is compatible with the established characteristics of the locality. In short because the additional floor space above the standard is wholly contained within an unobtrusive basement level, which makes no contribution to the bulk, height or scale of the building, compliance would be unreasonable and unnecessary in the circumstances.
10 We accept that the purpose of the floor space ratio development involves density, scale and building bulk and have not been persuaded that there are any adverse consequences that result from the bulk and scale of the proposed building. Also, being a single dwelling house on a single allotment no concern regarding density arises. In these circumstances we have been persuaded by the SEPP 1 objection and would uphold it.
11 The controls under Part B1.2 of the DCP require that new development be located within the Building Location Zone that comprises:
12 A zone defined by the average front and rear setbacks of both the adjacent buildings on either side of the subject site. The BLZ is that part of the subject site where it can be reasonably expected that a building will be located.
13 Accompanying this description is a diagram with a theoretical depiction of a building location zone where a line is drawn connecting the rear-most corners of adjacent buildings, the utilised corners being those closest to the site's boundaries.
14 In our opinion there is an inconsistency between the diagram and the written definition because the diagram does not seem to take into account the notion of average setbacks. This becomes particularly important when considering irregular shaped sites. It is nevertheless important in our opinion, that although both the definition and the diagram should be given consideration, greater weight should be given to the notion of averaging. It is clear that if the approach indicated by the diagram is applied to this development there is a non-compliance with the BLZ. Conversely if the average of the setbacks of the adjoining properties is taken into account and applied to the average setbacks of the proposal, we agree with the applicant that compliance is achieved.
15 The DCP anticipates applications for buildings extending beyond the BLZ but justification is required as to the appropriateness of the proposed building footprint. In this regard matters to be taken into account include bulk and scale as viewed from adjoining properties, neighbour amenity (privacy, overshadowing and views), landscaping, compliance with other planning controls (including floor space ratio and landscaped area), streetscape and character and adequacy of private open space.
16 Taking an overview of the BLZ requirement (that is a matter for consideration as distinct from a development standard), the approach of "splitting the difference" of the average rear setbacks of the adjoining existing buildings and applying this difference to the site in question is an appropriate approach in terms of fairness and achieving the objectives of the control. Applying this approach to the proposed building, in our opinion this produces a satisfactory outcome in terms of its relationship to its neighbours particularly in terms of the manner in which the proposed building presents itself to the neighbouring buildings (ie bulk and scale) and the manner in which these buildings present to the proposal. In this regard we have not been persuaded that there would be any unreasonable amenity impacts, such as overshadowing or view loss. Also as concluded above the floor space ratio is satisfactory and the landscaped area requirement is complied with.
17 In relation to streetscape and conservation cl 16 (8) of the LEP requires an assessment of the affect the development would have on the conservation area and cl 15(a) and (c) seek the protection and enhancement of conservation areas and the avoidance of undesirable incremental change. In this context the DCP includes the site in the Darling Street East locality where the architecture of the 1850s-1870s is still readily visible. The desired future character involves the preservation and enhancement of the existing streetscape whilst allowing for contemporary complimentary redevelopment. More particularly new development should respect the existing context of the streetscape in terms of scale, materials and sympathy to the existing built form. Also additional driveway crossings are discouraged in order to maintain pedestrian and vehicle traffic flow.
18 The car parking requirements in the DCP discourage on-site parking for single dwellings where the continuity of the footpath and verges are disrupted and where on street parking capacity is reduced. Also where the garage access forms part of the main front wall of a dwelling it must be less than half the width of the building and subordinate to the main elevational detail.
19 The proposed garage access (ie the garage door) is 2.7 m wide and the building is 7.3 m wide and is thus less than half the width of the building.
20 Taking these requirements into account the council's principal concern involves the utilisation of about half of the frontage of the site for the garage that as a consequence is not subordinate to the streetscape elevation of the building.
21 Traffic evidence provided on behalf of the applicant shows that the proposed driveway and garage would not affect on street parking the new driveway being positioned adjacent to a bus stop. There was no suggestion that there would be any impacts on pedestrian and vehicle traffic flows. This evidence also notes that the development will generate and is responsive to the need for car parking when none is presently provided and where there is a strong demand for on street parking.
22 We accept this traffic evidence. We are also satisfied that whilst the garage door may not be entirely subordinate to the main elevational detail but taking into account that it is less than half the width of the building it would not be so intrusive as to require the omission of off-street parking from the site. We have reached this conclusion taking into account the existence of numerous driveways and off-street parking provisions opposite and to the east of the site, including a driveway and garage on the adjoining 108 Darling Street cannot be disregarded, despite being approved under a former planning regime. Hence the proposed contemporary building is responsive to the form and scale of other nearby buildings and is appropriately responsive to the streetscape.
23 This development is not without its impacts. However we would describe these as relatively minor and would not adopt the suggested approach of accumulating these impacts to the effect that the development is unacceptable.
24 For the above reasons we have decided that the appeal should be upheld and conditional development consent granted. The conditions will be those as agreed and contained in Exhibit 3. The plans will be retained.
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