Wang v Sydney City Council
[2012] NSWLEC 1031
•21 February 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Wang & Anor v Sydney City Council [2012] NSWLEC 1031 Hearing dates: 18-19 January, 14 February 2012 Decision date: 21 February 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: CONSENT ORDERS; bulk and scale, compliance with planning controls Legislation Cited: Environmental Planning and Assessment Act 1979;
Land and Environment Court Act 1979;
Leichhardt Local Environmental Plan 2000Texts Cited: City of Sydney Heritage Development Control Plan 2006;
Leichhardt Development Control Plan 2000;
Draft Sydney Local Environmental Plan 2011Category: Principal judgment Parties: Xiaohong Wang
Sydney City Council (Respondent)
Tantastic Nominees Pty Ltd (Applicants)Representation: Dr D Doyle
Mr A Singh
David Doyle & Affiliates Consulting Solicitors (Applicant)
Sydney City Council (Respondent)
File Number(s): 11118 of 2011
Judgment
Ms Wang, and a company owning a neighbouring strata allotment are applicants in these proceedings, which is an appeal against the refusal, by Sydney City Council, of Development Application No. D/2010/656. That application proposed the addition of two new dwellings above existing garages and parking spaces at the rear of Nos. 68-70 Glebe Point Road, Glebe.
The matter commenced as a conciliation conference under the provisions of S34AA of the Land and Environment Court Act 1979 however, despite the co-operation of both parties, agreement in that forum was not reached, the conference was terminated and the hearing under s 34AA(2)(b)(i) commenced forthwith despite submissions opposing this by Dr Doyle on behalf of the applicant. The Court held that it was appropriate to proceed with the hearing forthwith in accordance with those provisions.
Further discussions in relation to the application were conducted overnight and the parties resolved the issues in contention and arranged for the preparation of amended plans. The applicant was granted leave to rely on those plans. As the plans addressed the council's contentions, the parties are now seeking consent orders from the Court.
Background and the proposal
The application was lodged by the owners of two adjoining allotments known as Nos. 68 and 70 Glebe Point Road, Glebe and proposed the construction of a self-contained dwelling above the garage and carspace located to the rear of each allotment.
A four-storey commercial and residential building is erected at the front of each site, having been built as one structure with the benefit of party walls to separate the tenure. The ground floor space on each lot is a commercial tenancy with a two storey residential dwelling and third level loft above. At the rear of each site is an attached garage accessed from Derwent Lane. One additional uncovered parking space adjoins the garages on both lots. It is the area above those parking spaces that is the subject of the application.
The plans determined by the council proposed the construction of a one bedroom, self-contained dwelling above the garage and parking space of each lot.
The plans now before the Court propose the enlargement of the existing garage areas in a northerly direction so as to increase that area by 4.96sqm for each property and use that space for the residential access and entry from Derwent Lane and to provide stairway and lift access to the proposed upper level residential accommodation on each property. The open carparking spaces would be enclosed, new roller shutter doors installed to the laneway frontage and that area used for carparking. The courtyard areas would be replanted and a rainwater tank provided on each site at the northern end of the proposed garages. On-site parking would be reduced from the current four spaces to two spaces.
First floor plans propose a studio unit with total floor area of 39sqm. A north facing balcony opens off the living space of each studio and is setback 2m from the side property boundaries.
The design of the development incorporates the first floor within a gable roof structure.
The site and its context
The site comprises two adjoining allotments, Lots 1 and 2 in Deposited Plan 774565 known as Nos. 68-70 Glebe Point Road, Glebe.
Lot 1 (No. 70) has a frontage of 6.08m to Glebe Point Road and 5.765m to Derwent Lane, a service lane that runs to the south of the sites. Lot 2 has frontage of 6.19m and 6.125m to those roads respectively. Site areas are 218.5sqm (Lot 1) and 2215sqm (Lot 2).
Development in the vicinity of the site comprises commercial and retail development along Glebe Point Road with upper levels of the buildings primarily used for residential purposes. There are also two former warehouse buildings within the block bounded by Glebe Point Road, Derwent Lane and Mitchell Street, in which the site is located. The block to the south comprises one and two storey dwelling houses, Glebe Public School is to the east and development further west along Glebe Point Road comprises a mix of freestanding dwellings and commercial premises.
Derwent Lane provides access to the rear of those lots on its north and south and there are a number of single storey garages constructed along its length. Other than the former warehouse buildings, there are no other two storey buildings fronting the lane in the vicinity of the site.
The issues
The contentions in the matter were whether the proposed built form was consistent with the surrounding pattern of development and the desired future character of the area, whether the design of the development provided an appropriate level of residential amenity for occupants, whether the development conflicted with other uses on the sites and represents an undesirable incremental change to streetscape which reduces the heritage significance of the locality.
The plans now before the Court are significantly different from those determined by the council and reduce the height, bulk and scale of the proposal from that originally proposed and deemed unacceptable by the council.
The planning controls
The site is within the Business Zone under Leichhardt Local Environmental Plan 2000 (the LEP). The proposal is permissible with consent in that zone.
City of Sydney Heritage Development Control Plan 2006 (HDCP) and the Leichhardt Development Control Plan 2000 (LDCP) provide controls relevant to the proposal. The site is within the Glebe Conservation area.
Draft Sydney Local Environmental Plan 2011 also applies to the site, which, under that plan, would be within Zone B2 Local Centre.
LDCP contains controls for Laneway Development in Part B4.3 and has differing criteria depending on laneway width. At the commencement of proceedings, there was disagreement between the parties as to the categorisation of Derwent Lane and neither party had evidence that could validate the precise width of the laneway. In fact, the applicant's Statement of Facts and Contentions in reply, at [64] stated that it would agree to a condition which provides that the units be setback a distance of 50cm from Derwent Lane thus ensuring that (in functional terms) the lane becomes a Medium classification lane.
For that reason, during the site view, the Court requested subdivision plans to verify the width of Derwent Lane so that it could be correctly classified. It is now agreed between the parties that it is a Medium Lane for the purposes of LDCP. Whilst dwellings fronting onto medium lanes are discouraged under that plan, they may be considered if other lane-fronting dwellings are located within 15m from the property boundaries of the proposed dwelling. That is the case for this site as it is agreed the former warehouse building to the east of the site is within 15m and contains dwellings fronting Derwent Lane.
The evidence
Expert evidence was heard from Mr R Smyth for the applicant and Mr C Shortt for the council. They also participated in joint conferencing that led to the preparation of the amended plans that are now the subject of the consent orders application before the Court. Mr Shortt also prepared a further report (Exhibit 8) that addressed those amended plans. That report provided a comprehensive assessment of the amended plans against all of the relevant planning controls and concludes that the proposed development is consistent with those controls.
In particular, Mr Shortt says that the development is consistent with the built form of the surrounding area and the desired future character of the locality. He has assessed the impacts of the built form on solar access and concludes that the building will not result in unreasonable impacts on the solar access of adjoining properties.
An assessment of the application against the LDCP controls was also conducted by Mr Shortt who says that the proposal complies with the height and building envelope controls, the design of the development is an acceptable response and meets the objectives of the controls that relate to laneway development and does not detract from the service nature of the laneway which the DCP objective is seeking to maintain.
As the site is within the Glebe Conservation Area, the HDCP also applies to the proposal and Mr Shortt had regard to the provisions of clauses 4.4 - Neutral Buildings and 10 - Development on Lanes and says that the proposal, as a neutral building, would be compatible with the existing pattern of development along the laneway and is acceptable. Importantly, he says the amended design would read as a single storey building with attic rather than appear as a two storey structure and the reduced bulk from those plans originally lodged with the council is now compatible with the laneway.
Conclusion and findings
The applicant did not contest the evidence of Mr Shortt in relation to the amended plans. I am satisfied that the review of those plans that he undertook in his report, Exhibit 8, has addressed all of the relevant matters that must be considered by the Court in accordance with the provisions of s79C of the Environmental Planning and Assessment Act 1979 and I concur with those findings.
The parties discussed the draft consent conditions and amendments were made during the hearing and all of those conditions are now agreed.
Orders
By consent, the orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No. D/2010/656 for the construction of two studio apartments above existing garages and parking spaces at the rear of Nos. 68-70 Glebe Point Road, Glebe is approved subject to the conditions included in Annexure 'A'.
(3) The exhibits, other than exhibits 1 and C are returned.
Sue Morris
Commissioner of the Court
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Decision last updated: 22 February 2012
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