Timothy Williams & Associates Pty Ltd v Council of the City of Sydney

[2009] NSWLEC 1344

Land and Environment Court

of New South Wales

CITATION:

Timothy Williams & Associates Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1344

PARTIES:

APPLICANT
Timothy Williams & Associates Pty Ltd

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

10365 of 2009

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- alterations and additions to existing dwelling; private open space; bulk and scale; character; and heritage.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan - Urban Design 1997
City of Sydney Heritage Development Control Plan 2006.

DATES OF HEARING:

29 September 2009, 2 October 2009

EX TEMPORE JUDGMENT DATE:

2 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mrs Mary Lynn Taylor (solicitor)
SOLICITOR
Bartier Perry

RESPONDENT
Mr Mark Fozzard (solicitor)
Council of the City of Sydney

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

2 October 2009

10365 of 2009 TIMOTHY WILLIAMS & ASSOCIATES PTY LTD v SYDNEY CITY COUNCIL

JUDGMENT

1 This appeal relates to a development application for alterations and additions to an existing terrace house at 63 Regent Street, Paddington. The additions mainly comprise a rear garage extension with a rooftop terrace (on top of the garage) that interconnects at the same level with the dwelling’s living areas.

2 The existing house extends over three levels, being two storeys at Regent Street and, utilising the slope of the site, becomes three storeys at the rear. It is an unlisted Victorian terrace in a row of three terrace houses (comprising 59, 61 and 63 Regent Street), constructed in the Federation Queen Anne style.

3 The site comprises lot 1 DP718403, is situated on the corner of Leinster Street, and has an area of 153.2 square metres. It slopes generally east to west away from Regent Street between RL 55.62 and RL 52.52. It also has a gentle upwards slope to the north.

4 The area surrounding the site predominantly comprises residential development, mainly in the form of terrace houses, and some medium density three and four storey residential flat buildings.

5 The site is zoned Residential 2(b) (medium density) pursuant to the South Sydney Local Environmental Plan 1998 wherein the proposal is permissible with development consent. It is also situated within the Paddington South conservation area and the dwellings within the terrace row are identified as contributing items.

6 Clause 10 of the LEP requires that consent must not be granted unless the consent authority forms the opinion that the proposal is consistent with the objectives of, relevantly, the 2(b) zone. The relevantly applicable objectives of the LEP in cl 12(1) are:

(a) to enhance the amenity of existing medium density residential areas;
(b) to ensure that building form, including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment.

7 Also applicable are the South Sydney Development Control Plan - Urban Design 1997, and the City of Sydney Heritage Development Control Plan 2006.

8 Applicable objectives, controls and performance criteria in the Urban Design DCP relevantly deal with matters of desired future character, amenity of neighbours, private open space, landscaping, built form including floor space ratio, building height and scale, site coverage, location of garages, and the provision of decks for open space.

9 The Heritage DCP relevantly contains objectives including the need to minimise the impact of development on the setting of buildings within the conservation area.

10 The development application was advertised and no objections were received although letters of support were provided by neighbours.

11 The application was assessed under delegation and refused consent on 19 December 2008 for reasons essentially involving: failure to meet the objectives of the LEP and the 2(b) zone; failure to meet the objectives and requirements of the Urban Design DCP in relation to floor space ratio, scale, open space, landscaping and parking; and failure to meet the objectives of the Heritage DCP.

12 On behalf of the respondent council, expert evidence was given by Ms M Kanaley (town planning/urban design), and Mr J Poulton (heritage). On behalf of the applicant, expert evidence was given by Mr M Neustein (town planning/urban design), and Mr J Phillips (heritage).

13 According to the statement of facts and contentions, the contentions that the council says warrant refusal of the application involve private open space, privacy, landscaping, parking, servicing, bulk, massing, height, scale, character and heritage conservation.

14 As the hearing progressed and as the evidence emerged, the applicant took the opportunity of making a number of amendments to the proposal as now reflected in Exhibits K, L and N, Exhibit N being the final plans submitted after the hearing reflecting the lowering of the terrace by 200 mm.

15 The respondent has now indicated that on the basis of those amendments, and taking into account the agreed conditions of consent, that it no longer opposes the proposal. On this basis, and there being no issue for the determination of the Court, and having considered the proposed changes in the light of all of the evidence and the planning controls, I have decided that the appeal can now be upheld.

16 In relation to the applicable planning controls, cl 10 of the LEP requires that the proposal be consistent with the relevant objectives of the 2(b) zone and in relation to the character and amenity of the area and the amenity of nearby residents I am satisfied that the requisite consistency has been achieved.

17 I have already indicated the scope of the various objectives, controls and performance-based criteria in the development control plans. A number of the numerical standards, including floor space ratio, landscaped area, site coverage and open space are not met by the proposal. Taking into account the expert evidence that was provided during the course of the hearing, I am now satisfied that the underlying purposes of these criteria are essentially achieved by the modified design that I have now decided to approve.

18 Therefore the orders of the Court are that by consent:

1. The appeal is upheld.
2. The development application for alterations and additions to an existing terrace house at 63 Regent Street, Paddington is approved subject to the conditions in Annexure “A” hereto.
3. Exhibits 8, D, K, L and N are retained.

________________________

T Bly
Commissioner of the Court
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