Tregilgas v Newcastle City Council
[2014] NSWLEC 1155
•12 August 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Tregilgas v Newcastle City Council [2014] NSWLEC 1155 Hearing dates: 5 - 6 August 2014 Decision date: 12 August 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Development Application: alterations and additions, building envelope, whether objectives of the control are met Legislation Cited: Land and Environment Court Act 1979; Newcastle Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979 Texts Cited: Newcastle Development Control Plan 2012 Category: Principal judgment Parties: Warwick James Tregilgas (Applicant)
Newcastle City Council (Respondent)Representation: Mr C Ireland (Applicant)
Ms A Pearman (Respondent)
Mr James Marshall
Mr J Saddington
O'Sullivan Saddington Lawyers (Applicant)
Newcastle City Council
File Number(s): 10386 of 2014
Judgment
Mr Tregilgas lodged Development Application DA 2013/931 with Newcastle City Council on 16 August 2014 seeking consent for alterations and additions to an existing dwelling house comprising the enclosure of an existing deck and construction of a storage area within the roof above at 8 Rowan Crescent, Merewether.
The council refused consent due to non-compliance with building envelope controls and Tregilgas is appealing that decision.
The issues in the case are whether the development satisfies the objectives of the council's control for building envelope.
The site and its context
The site is described as No 8 Rowan Crescent being Lot 42, Section 10A of Deposited Plan 111243. It is located on the north-western side of Rowan Crescent between Janet and Curry Streets and falls from the rear to the street by approximately 8m over its 50m depth. Views of the ocean are available to the north and east from the existing dwelling, deck and rear yard.
A part one and part two storey dwelling house is erected on the site in accordance with an approval issued by the council in 2003. The main living component of the dwelling is on its upper level and includes an internal deck on the northern side towards the rear. The living and family rooms open onto this deck and its southern face adjoins the main internal stairway. A shadecloth roof has been constructed above the deck following the line of the existing roof.
Development in the vicinity of the site comprises a mix of single and two storey dwellings. Whilst this section of the street contains primarily single storey modest cottages, the area is undergoing transition with larger dwellings replacing those dwellings through either redevelopment or carrying out extensive alterations and additions.
Background and the proposal
The proposal involves the enclosure of the deck using a mix of fibrous cement panels, glass louvres and fixed glass with a metal roof. That roof extends beyond the plane of the existing roofline so that it protrudes outside the building envelope control established in Newcastle Development Control Plan 2012 (DCP).
A storage area is proposed within the roof space occupying an area above the internal staircase and part of the deck. That space would be accessed via a stairway to be constructed across the southern glass wall that encloses the internal staircase. It is unclear whether alterations to one or both door sets that provide access to the deck from the living and family rooms is required to facilitate access to that stairway. The storage area has a minimum floor to ceiling height of 2.193m and a north facing opening to a void above the deck. All of the storage area is contained within the building envelope.
The matter is subject to the provisions of s34AA of the Land and Environment Court Act 1979 (LEC Act) and commenced with an onsite view and conciliation conference on 5 August 2014. No agreement was reached during that conference however the applicant elected to prepare amended plans. Those plans were provided to the council late that day for consideration and formal leave to rely on the plans was granted during the hearing held on 6 August 2014. The effect of the plans is to reduce the extent of encroachment into the building envelope.
The plans now before the Court (Exhibit A) increase the pitch of the proposed roof over the storeroom/deck from 5 to 8.5 degrees, reduce the thickness of the roof support structure and delete the 450mm eaves so that the roof finishes in line with the outer wall of the dwelling house and corresponds to the proposed glazed and solid enclosing walls to be erected across the northern face of the deck. The structure of that wall varies. In the location to the immediate north of the living room, the wall comprises a 2.1m high fibrous cement sheet with the area above open to the height of the existing eaves. The solid wall component is reduced to 1.5m to the north of the deck area. Louvres, of an unspecified material, 600mm high would be constructed above that panel with fixed glazing above with the exception of an end panel that would comprise louvres to the underside of the proposed roof addition.
The extent of the roof addition that now falls outside the building envelope control is indicated on the southeast and northwest elevations shown in Drawing Nos 07 and 08 of Exhibit A. The worst case is at the southeast elevation, the elevation that fronts Rowan Crescent. In that location, a triangular shaped fixed glazed panel and the 50mm deep roof structure encroaches the envelope. The height of the triangle when measured as a continuation of the existing wall height is 1.591m and it protrudes 2m outside the line of the building envelope.
The encroachment of the building envelope is less at the rear due to the upslope of the site and reduces to a height and depth of approximately 900mm and 1m respectively. The length of the roof encroachment is 4.8m and is located towards the rear of the dwelling.
The council had received one objection to the original plans and that suggested the roof height should be reduced by 1m. The applicant had shown the objector the amended plans and advice that the objection had been withdrawn was provided to the Court (Exhibit B) provided the height did not exceed that shown on the plans.
The planning controls
The site is zoned R2 Low Density Residential pursuant to Newcastle Local Environmental Plan 2012 (LEP). The proposed development is permitted with consent in that zone. Clause 2.3(2) states that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the zone are:
· To provide for the housing needs of the community within a low density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
· To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.
Development standards for height (clause 4.3, maximum 8.5m) and floor space ratio (maximum 0.6:1 FSR) (clause 4.4) apply to the site. The development does not exceed either standard.
The purpose of the DCP is set out in Part 1.00 and is to:
1. Provide detailed provisions relating to matters of significance to The City of Newcastle to be considered by Council when exercising its environmental assessment and planning functions
under Part 4 of the Environmental Planning and Assessment Act 1979.
2. Expand upon the aims, objectives and other provisions of the Newcastle Local Environmental Plan 2012.
3. Provide detailed criteria for the assessment of development applications.
4. Identifies notification requirements in accordance with section 74C(c) of the Environmental Planning & Assessment Act 1979.
Part 2.00 sets out how the plan is to be used with each section formatted consistently and containing a range of information. Importantly in this case are the aims, objectives and controls. The part also addresses how variations to development controls will be considered and requires the applicant demonstrate how the aims and objectives are achieved notwithstanding the variation.
Part 3.02 Single Dwellings is applicable to the application. The aims of that section are:
1. To encourage development that complements and enhances the built environment and has minimal impact upon the existing amenity.
2. To reduce the consumption of land for residential purposes.
3. To encourage innovation and diversification in site layout and building design.
4. To ensure dwellings are generally compatible with the scale and bulk of existing and likely future residential development on adjacent lands.
5. To ensure dwellings provide their occupants with adequate levels of comfort, security and amenity.
6. To ensure new development is designed to take advantage of the positive attributes of the site; including, slope, aspect, trees, gardens and existing buildings.
7. To ensure landscaping is in scale of the building and complements features on the site and adjoining land.
8. To retain significant existing landscape where possible.
9. To ensure adequate solar access for dwellings.
Building envelope controls are provided at part 3.02.04 and have the following objectives:
1. Enable flexibility in the siting of buildings and the provision of side and rear setbacks.
2. Ensure adequate natural light, ventilation, privacy and view sharing between buildings.
3. Ensure bulk and scale is reduced by progressively increased setbacks as wall height increases.
4. Ensure building bulk is generally distributed to reduce impact on neighbours and the public street.
5. Ensure walls are sited and of such a length and height that there is no significant loss of amenity to adjacent dwellings and land.
The Controls are:
1. Buildings are contained within the building envelope defined by:
(a) planes projected at 45º from a height of 4.5m above ground level (existing) at the side and rear boundaries, to a maximum height which is specified in the Newcastle Local Environmental Plan 2012. Figures 3, 4, 5 and 6 demonstrate the building envelope.
(b) where the site abuts a public street, the envelope has a street boundary height which is determined by reference to the streetscape.
The issues
The only contention in the case is whether the proposed development complies with the provisions of Part 3.02.04 of the DCP as detailed at [19], specifically, objective 3. The council contends that the roof structure significantly encroaches on the prescribed building envelope resulting in unacceptable bulk and scale.
The evidence
Expert evidence was heard from Mr Chris Tucker, architect for the applicant and Mr Stephen Wright, a building surveyor employed by the council. Neither party elected to put on any town planning evidence. Mr Tucker prepared the plans of the proposal lodged with the development application and refused by the council and the amended plans now before the Court in accordance with the leave granted. He had also prepared an individual expert report (Exhibit D). The experts prepared the only Joint Expert Report in the proceedings, Exhibit 5.
A supplementary joint report, Exhibit 6, was prepared in response to the two dwellings visited in the site view. Those were No 14 Rowan Crescent and No 68 Hickson Street, Merewether. Both dwellings contained on those sites do not comply with the building envelope control. No 14 is located to the south of the site on the corner of Curry Street and No 68 is located on the headland to the south of Merewether Beach, some 500m from the site as the crow flies.
Mr Wright says that the proposal does not comply with the objectives of 3.02.04 by not meeting the minimum requirements of the controls, that is, it does not fit within the building envelope. The proposed roof structure, in relation to the existing dwelling, while not being extensive, is unwarranted considering the primary reason for the encroachment is to create a lofted storage area. The proposed addition would be visible from the street and does not progressively increase the setback as the wall height increases, as the proposed roof structure extends out to the existing building face. The substantial building renovations that do not comply with the DCP could be redesigned to achieve the same exposure to light and ventilation for the lofted storage area with an alternative design that follows the existing roof profile.
Mr Wright acknowledged that there would be little impact on solar access to the adjoining property however says the non-compliant roof section creates a significant, dominating, visual impact to the neighbouring property, No. 6 and increases the bulk and scale of the dwelling when viewed from Rowan Crescent. He says objective 3 requires the bulk and scale to be reduced by progressively increasing the setback as the wall height increases and, as demonstrated at 6 Rowan Crescent, generally the dwelling should relate to the existing topography of the site and in this instance follow the form of the existing ground levels as they fall to the front of the property, not increase in height. Mr Wright considered the amended plans reduce the extent of non-compliance and the works represented a marginal increase to the building as a whole, not significant in the scale of things. He agreed that there would be no loss of coastline or water views from any of the adjoining properties if consent were to be granted and if there was to be any impact on views it would be to intermediate district views.
Mr Tucker says the proposal meets the objectives of clause 3.02.04 of the DCP and that the encroachment of the proposed roof structure into the building envelope is not significant given its location, relative size and shape and existence given by the slope of the site underneath it. He considers the bulk and scale of the addition to be acceptable due to its location and limited visual relation to neighbouring properties and with the street. That bulk and scale is reduced by the new wall to the courtyard deck being predominately glazed with only the section of deck level to 1.5m high solid. The length of the new roof and walls are relatively small in width (4.8m) compared with the length of the site (50m), it is significantly set back from the street and would be barely visible from that location. It would have no visual or solar impact on the adjacent property at No 6 Rowan Crescent and, given the location of windows in that property, it could barely be seen from it.
As the existing ridge height and construction of the roof at the site would be maintained, Mr Tucker says the effect of the proposal having any effect on the bulk and scale when viewed from above is negligible. He says the intent of the control is to ensure that the bulk and scale of buildings does not adversely impact on adjacent properties and the street by visually enclosing or dominating them and the proposed changes to the roof neither enclose nor dominate any public or private realm.
Mr Tucker says the roof changes over the courtyard deck are required to provide winter sun penetration to the courtyard deck and the living spaces connected to it; prevent overheating during summer; provide protection from the rain and wind and visually screen the roof, walls and windows of 6 Rowan Crescent whilst retaining the openness and importance of the courtyard space in the middle of the house. He says that a continuation of the roof over the deck would be an ineffective solution because it would limit winter sunlight and the option of using translucent roof material would overheat during summer.
In relation to the two examples of dwellings that have been constructed in breach of the building envelope control, the experts agreed that No 14 Rowan Crescent was approved under an earlier development control plan which provided for a 9m maximum building height (now 8.5m) but identical building envelope control. They agree that those parts of the dwelling constructed outside the building envelope are significantly visible from the street. Mr Tucker says the parts of the dwelling outside the envelope are significant however Mr Wright disagrees and says that they aren't when taken from natural ground level.
The dwelling at 68 Hickson Street is currently subject to building work however the main structure accords to that shown on the approved plans (Exhibit E). Consent for that work was granted in December 2013 and the provisions of the current LEP and DCP applied. Mr Tucker says that the amount of wall and roof outside the building envelope control is significant and the addition, being on a ridgeline will be visible from many public and private vantage points. Mr Wright considered the dimensions of the departure were not significant and cited the extent at the eastern elevation however conceded this increased to considerably greater non-compliance on the western face of the dwelling. He considers that when viewed from other vantage points that the additions are consistent with neighbouring properties.
The experts agree that the assessment report considered by the council when it granted consent for No 68 shows that it applies the building envelope controls flexibly and allows exceedances where, in particular, these are contributed to by the slop of the land, will not cause unreasonable overshadowing impacts on neighbouring sites and where the design is attuned to the character of other buildings in the immediate neighbourhood.
Conclusion and findings
The contention in this case is whether, in the absence of compliance with the DCP control for building envelope, consent should be granted. In accordance with the provisions of s79C of the Environmental Planning and Assessment Act 1979 (EPA Act), the matters for consideration relevant to the application are the LEP, DCP, the likely impacts of the development, the suitability of the site for the proposed development and the public interest.
Having regard to the evidence, I am satisfied that the proposed works are consistent with the objectives of the R2 zone. The development is compliant with all relevant development standards contained in the LEP.
I consider, in the circumstances of the case that the amended plans are satisfactory and that the variation to the building envelope control is minor, as detailed at [11-12].
The aims of the DCP for single dwelling houses are also met in that the development would complement and enhance the built environment and have minimal impact on existing amenity. The amended plans encourage innovation and diversification in building design and are generally compatible with the scale and bulk of existing and likely future residential development on adjacent lands. The design has been prepared to provide occupants of the dwelling with adequate levels of comfort and amenity ensuring solar access to the dwelling component is retained.
The specific objectives of the building envelope control as detailed in part 3.02.04 of the DCP are also met. I consider that the amended plans makes adequate provision for natural light, ventilation, privacy and view sharing between buildings and that bulk and scale has been sufficiently addressed through the use of the lightweight construction proposed and the deletion of the eaves overhang. The increased roof pitch and the siting of the works towards the rear of the site will mean that only a minor part of the roof would be visible from the public domain. The minor extent of work outside the building envelope has no impact on adjoining properties, such that I am satisfied that there will be no loss of amenity. Accordingly, I am satisfied that, despite the non-compliance with the numerical controls, the objectives of the building envelope are met. This is consistent with the manner in which the DCP provides for variation of particular controls.
I give no weight to the evidence of Mr Tucker in relation to the properties at No 14 Rowan Crescent and No 68 Hickson Street other than the approval of those dwellings demonstrate the council has flexibly applied the building envelope control. Those circumstances do not justify approval of this application and, having viewed each property, reinforce to the Court the importance of the building envelope control to minimise the impact of excessive bulk and scale when viewed from a public place.
For these reasons, there is no reason why consent should not be granted.
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development Application DA 2013/931 for alterations and additions to an existing dwelling house comprising the enclosure of an existing deck and construction of a storage area within the roof above at 8 Rowan Crescent, Merewether is approved subject to the conditions included in Annexure A.
(3) The exhibits, other than exhibits A and 1, may be returned.
________________
Sue Morris
Commissioner of the Court
Annexure A
Decision last updated: 12 August 2014
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