Watterson v Leichhardt Municipal Council
[2006] NSWLEC 249
•05/17/2006
Land and Environment Court
of New South Wales
CITATION: Watterson v Leichhardt Municipal Council [2006] NSWLEC 249 PARTIES: APPLICANT
Roy Watterson
RESPONDENT
Leichhardt Municipal CouncilFILE NUMBER(S): 11175 of 2005 CORAM: Hoffman C KEY ISSUES: Development Consent :- Alterations and additions, heritage significance, streetscape, conservation area, floor space ratio exceedance LEGISLATION CITED: Leichhardt Local Environmental Plan 2000
Sydney and Middle Harbours Regional Environmental Plan No. 23
State Environmental Planning Policy No. 1DATES OF HEARING: 26/04/2006
DATE OF JUDGMENT:
05/17/2006LEGAL REPRESENTATIVES: APPLICANT
Mr T Hale, SC
Instructed by Ms R Hay, solicitor
SOLICITORS
Slater & GordonRESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
11175 of 2005 Roy Watterson v17 May 2006
Leichhardt Municipal Council
JUDGMENT
1 This is a class one appeal No. 11175 of 2005 between R Watterson and Leichhardt Municipal Council in regard to conditions of development consent No. DA04/701 for alterations and additions to No. 22 Datchett Street, Balmain.
2 There is an existing two storey house on the site which fronts Datchett Street overlooking Cameron’s Cove. Datchett Street is very narrow and slopes down towards the harbour from Darling Street. The street dead ends at a public walkway along the foreshore and the last 100 m or so of the road is quite steep such that vehicle access to the last six or eight houses is impracticable. The site has rear vehicle access to Little Nicholson Street.
3 The council approved a large attic studio and enclosure of a rear first floor balcony overlooking the backyard. The applicant also wants to enclose the front first floor balcony for a study/office overlooking Cameron’s Cove. This was refused.
4 The appeal is against conditions 2(a) and (b) of the consent. 2(a) required the Datchett Street balcony to remain unenclosed and 2(b) require a privacy screen on the south end of the rear balcony enclosure to protect the privacy of No. 24 Datchett Street. At the hearing the applicant agreed to comply with Condition 2(b) so that part of the appeal was withdrawn.
5 The issues remaining are:
1. The enclosure of the front balcony at the first floor is not supported, as its design is unsympathetic to the nearby heritage items and the character of Datchett Street as a whole.
2. Datchett Street has a strong flavour of timber houses built on the street alignment, usually with verandah or balcony fronts and this character of open structures and visual lightness should be kept and emulated. The enclosure would be an uncharacteristic alteration in a streetscape in which the majority of verandahs retain this open form. Glass often reflects and reads as a solid, and furnishings will result in a full sense of enclosure. The drawings do not explain what is intended in terms of the treatment of the existing front timber wall, and as this wall (together with the underside of the roof) would become 'internal' faces of the building if the subject development application is approved, Council would subsequently have little control as to how they might be treated in future. The wall and underside of the roof would remain visible through the proposed glazed treatment of the verandah, and their appearance would thus impact on the appearance of the proposed work as a whole.
3. Datchett Street presents a unique character, with a considerable contribution to the conservation area, and the erosion of this character by unsympathetic verandah enclosures would be contrary to the heritage and conservation provisions of Leichhardt Local Environmental Plan 2000 ("LEP 2000") (Clause 15 and Clause 16(8)).
4. In particular, the verandah enclosure would adversely impact on the setting of heritage items at 20 and 20A Datchett Street, contrary to the provisions of Clause 16(7) of LEP 2000.
5. The impact of the work on the conservation area and on the foreshore environment would be contrary to Sydney and Middle Harbours Regional Environmental Plan No. 23 , Clause 18(a) (the appearance of the development from the waterway and foreshores) and (Clause 18(j) (the effect of development on any conservation area).
6. The proposed alterations are poorly resolved, in that they simply place a series of sliding glass doors behind the line of the existing balustrade. This will appear make-shift and clumsy and reinforce the fundamental concerns raised by the verandah enclosure. The design demonstrates no consideration to the change in the nature of the space, from an 'external' to an 'internal' living area, and the proposed works would present unsatisfactorily in either context.
8. The enclosure of the verandah would - together with the approved attic level - lead to an exceedance of the floor space ratio standard set out in Clause 19(2) of LEP 2000. The combined effect of these works is an FSR of 0.75:1 compared to an allowed FSR of 0.7:1. Clause 17(a) of LEP 2000 sets out the objectives of the standard: 'To provide development standards to ensure that the density ... of new housing [is] complimentary to and compatible with the style, orientation and pattern of surrounding buildings, and ... take[s] into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character'. Generally, the standard is concerned with the control of bulk and scale. The proposed works are not consistent with the style of surrounding development and they are not appropriate in terms of their design. Accordingly, floorspace in excess of the standard should not be permitted.7. Although the building itself has no heritage significance, its streetscape presentation, incorporating timber verandahs at ground and first floor, at least defers to a characteristic element. The enclosure of the first floor verandah and lack of attention to detailed design would confuse the architectural language of the building in its context, as well as its contribution to the streetscape and conservation area.
6 The respondent was represented by:
- Ms J Walsh, solicitor
7 Objectors who gave evidence on-site and who had written objections in evidence were:
- Mr & Mrs J & R Gould of 16 Datchett Street.
8 Appealing for the applicant was:
- Mr T Hale, senior counsel and
- Ms M Bodie of 18 Datchett Street gave evidence on site in support of the proposal.
9 Mr R Watterson, applicant also gave evidence.
10 There was a written objection also from No. 24 Datchett Street that was overcome by the settlement on Condition 2(b).
11 Mr M Robinson, architect town planner and heritage specialist was the expert the parties had agreed should be appointed by the Court.
12 When on-site, I was taken through the house, and walked along Datchett Street and then Darling Street to see the character of the area and along the way was shown four other enclosed upper balconies. Three were apparently quite old enclosures and not sympathetic to their Victorian terraces. The third was a more recent enclosure of the rear balcony of a building on the corner of Datchett Street and Darling Street. It had been consented to by council and involved a series of colonial style wooden shutters.
13 The rear balcony is visible from Datchett Street. Several other houses in Datchett Street had unclosed upper storey balconies. Many other unenclosed upper balconies were seen during the walk.
14 The parties and I also walked to Cameron’s Cove Park and looked back to the site and Datchett Street.
15 The respondent maintained opposition to the enclosure of the upper balcony for all the reasons in the issues. The applicant said if the Court decided to approve the enclosure of the front balcony, then a deferred commencement condition should be imposed as follows:
A. Amended plans and specifications incorporating the following amendments shall be submitted to and approved by the Council:
(i) In respect of the front verandah, removal of the existing balustrade and using the existing verandah posts as a framework, the verandah shall be infilled with vertically proportioned glazing in timber frames with a chair rail approximating the present balustrade height. The lower portion of glazing shall be fitted with fixed or operable timber louvres on the outside to provide semi-transparent screen to the activities proposed within the room created on the verandah. The upper glazing shall comprise equal banks of vertical casement timber windows. These should be internally fitted with either timber Venetian blinds or plantation shutters.
(ii) The brick based wall of the building is to be bagged or painted in a sympathetic colour to the adjoining sandstone based walls to reduce its visual prominence in the streetscape.
(iv) The existing approval for additional accommodation at roof level being development application 0/2002/588 shall be surrendered to limit any exceedance of the floor space ratio controls.(iii) In respect of the rear verandah, privacy screen treatments are to be provided at each end of the rear verandah to a minimum height of 1.6 m above the finished floor level of the study.
16 This would replace Conditions 1 and 2 of the existing consent. The applicant said it would accept Conditions A(ii) and (iii) as specific conditions but not deferred commencement, and did not accept Conditions A(i) and (iv). The consent the council sought to have surrendered was the prior approval of the attic studio that had not yet been built.
17 Mr Robinson did not see any necessity for the deferred commencement condition as he thought the proposal was acceptable. In summary the proposal consisted of the installation of floor to ceiling glass sliding doors behind the existing balustrade up to the supporting beam and rafters of the balcony roof. This would give glass enclosure on three sides of the balcony, the fourth side being the front wall of the house with sliding glass doors to the master bedroom and a window to its en-suite.
18 Mr Watterson said the studio is for his wife to do sewing and calligraphy. The study/office proposed is for him to work from home.
19 The house has four bedrooms on the upper floor and an open plan living room and kitchen on the ground floor. The living rooms open to a backyard verandah at one end and the front verandah at the other. Each verandah is beneath the proposed first floor balcony enclosures. The rear balcony enclosure is off two children’s bedrooms to give them a play room. The house is timber framed weatherboard and was approved in 1989.
20 The parties agreed the existing house is mistakenly listed as a heritage item in the Leichhardt Local Environmental 2000. Adjoining it uphill are Nos. 20 and 20A Datchett Street and they are two single storey weatherboard cottages dating from 1848. They are both listed as heritage items with regional significance.
21 Adjoining downhill is No. 24 that was an old wartime bunker currently being converted to a dwelling. The latter is quite a contrast to the rest of Datchett Street that is Georgian and Victorian houses and cottages.
22 Uphill of No. 20 is Ms Bodie’s two storey house. The bedroom window of it looks across the tops of Nos. 20 and 20A to the proposed front balcony enclosure. She said she had no concerns about the proposal and considered herself to be the only neighbour who may have privacy impacts.
23 The Goulds expressed the opinion that the enclosure was not appropriate to the streetscape. They said when Mr Watterson made application for the original house, they supported the plans which he put forward at that time as they were more sympathetic to the conservation streetscape than what has been built. The design of the house changed to a holiday house appearance that they considered inconsistent with the streetscape and the balcony enclosure would only increase the inconsistency. Other houses in Datchett Street had gone to great pains to keep renovations etc. true to the character of the street. The proposal is not sympathetic they said.
24 Mr Robinson said in summary he did not think the enclosure of the front balcony would make much difference to the streetscape. The subject house is not a contributory building in the conservation streetscape, neither is No. 24. He thought the impact was not sufficient to warrant refusal.
25 In his report he said the Balmain Conservation Area is quite diverse in its mix of ages, uses, types of business and styles of buildings. Indeed in Datchett Street there is predominance of timber framed old 2-storey and 1-storey cottages some with verandahs at ground floor and/or first floor. But he saw no consistency close to the site that would require conformity.
26 The heritage items next door are lower than the upper balcony of No. 22 and the proposal should not affect their setting.
27 He said the glazing would often reflect sky due to the steep angle one looks up from the street to the balcony and this would assist in the perception of transparency.
28 On Sydney Regional Environmental Plan No. 23 – Sydney and Middle Harbours, Mr Robinson said the proposal would hardly be detectable from the water.
29 The floor space ratio exceedance of 4% caused by the balcony enclosure would likewise be hardly detectable. He notes cl 17 of the Leichhardt Local Environmental Plan contains objectives in Pt (a) of standards relating to houses as:
To provide development standards to ensure that the density … of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings …
30 Also he notes objectives for houses in part of the Instrument are:
- (d) to provide a diverse range of housing in terms of size, type, form, layout, location, affordability and adaptability to accommodate various needs of the community including persons with special needs.
- (e) to improve opportunities to work from home.
31 He referred to a large block of flats at the back of the subject house and No. 24 Datchett Street and the variety of cottage forms in Datchett Street admittedly much older than the flats and No. 24.
32 He noted the approved attic on the subject site that raised the roof pitch to obtain the space for the studio and said it would not perceptibly increase bulk. And because the study/office is proposed within the existing envelope it would not cause an inconsistency with the bulk, scale and pattern of surrounding housing. Therefore he said the State Environmental Planning Policy No. 1 objection to the exceedance of the maximum allowable floor space ratio should be granted.
33 He agreed in cross examination that with the new attic studio and enclosure of the rear balcony the house was at the maximum floor space ratio. The proposal caused the exceedance.
34 Turning to the streetscape impact it was noticeable during the view that except for the enclosed balconies seen there were a very large number unenclosed balconies in the locality most with roofs.
35 The respondent drew Mr Robinson’s attention to the Leichhardt Municipal Heritage Study Vol. 1990 cl 8.2.4 entitled “Gentrification”. It stated in part:
- The desire to accommodate current day life styles in older buildings often results in bulky upper level additions which destroy roof forms, enclosure of balconies (etc.). In general terms this trend has had a beneficial affect … nevertheless there are some instances where changes have occurred in an unsympathetic manner … and has seriously detracted from the significance of individual items and … intact streetscape.
36 This had apparently led to a provision in the Leichhardt Development Control Plan 2000 Pt (b) cl B4.1 entitled Alterations and Additions to Existing Dwelling Houses. Under the section Alterations to the Front it said:
- Avoid enclosing existing balconies. Reinstate balconies and verandahs where appropriate.
37 Mr Robinson agreed the proposal did not comply with that, but thought it did not need to as the house is not a contributory item to the streetscape. He agreed it would not enhance the conservation value of the streetscape, that is the enclosure of the balcony, but it has such minor impact it could be approved.
38 In his report and under cross-examination Mr Robinson agreed that the placement of furniture etc. in the proposed study/office could cause visual clutter to be seen from the street through the floor to ceiling glass sliding doors. He drafted a condition in Exhibit 4 to control placement of furniture in the room.
39 He agreed that in reflecting sky, the glass would tend to look solid rather than transparent.
40 Also when I asked about the orientation of the study/office Mr Robinson agreed the 7 m length of floor to ceiling glass faces to the west
41 The access to the study/office is through the master bedroom sliding glass doors and there is an en-suite window also into the study/office. They left only two small lengths of wall against which to put furniture. The verandah is only 1.8 m wide.
42 Mr Robinson said the desk would need to go against the glass and perhaps some other furniture as well, but big shelves and filing cabinets should go against the wall.
43 He agreed that especially with a desk against the glass, the room would need curtains or external sun control devices after midday most days. The house has zero setback to the street so an external sun control device would probably need an easement to overhang the street.
44 In summer heat from the western sun, he said opening the sliding doors would solve that. On the day of the hearing a wind was blowing quite strongly on the balcony. I suggested wind through open windows would blow papers off the desk and on many days would make ventilation difficult. He agreed.
45 It is obvious the balcony roof currently gives shade and weather protection to the master bedroom western windows. The study/office would have hardly any eaves overhang and so would not have the benefit of similar protection.
46 The balcony roof is intended to remain. It is currently unlined. The head height of the balcony is only a little over 2.1 m according to the plans and would be less if given insulation and a ceiling lining. I wonder if it would comply with the Building Code of Australia as a habitable room in that event. Nevertheless that was not raised in issues and I take no consideration of it.
47 Mr Robinson thought this proposal, if approved, would not create a precedent as it was a one-off and the other enclosed balconies seen on the view were old unsympathetic ones that were clearly distinguishable to this proposal. It was put that Mr Robinson had used enclosure of a verandah on the old bunker conversion at No. 24 as a justification for this proposal. He agreed he had done that on the basis of No. 24 being part of the context of the site, not as a precedent.
48 He said in Exhibit 3, photos of the enclosure of the verandah of a state significant item called Lillianfels in Katoomba, shows how it can be successful. In cross-examination he agreed that the verandah faced mainly south to the Jamieson Valley and would not require any sun control devices and the windows faced into the gardens of the property and were not seen in a streetscape setting of a conservation area.
49 In coming to a conclusion on this matter the parties were with me when I observed No. 22 from in front and at various points along Datchett Street and from Cameron’s Cove. Perhaps the best photos to see when considering the evidence is photos 1 and 2 in Exhibit 2.
50 The most relevant evidence is the ultimate affect of the proposal with a clutter of furniture, curtains and sun shades alternating with glass reflecting sky and looking solid instead of transparent.
51 I do not believe Mr Robinson‘s draft condition to control furniture and clutter is enforceable.
52 Also in considering the photographs and as seen on site the verandahs of the heritage items have some similarities to the verandah, balustrades and balcony of the subject house. They are all simple constructions consisting of posts, beams, a balustrade with simple vertical balusters. Although not exactly the same as the heritage items beside it, the verandah and balcony of the subject house form a non-jarring element in the conservation streetscape and are sympathetic to the heritage items.
53 As one walks down the hill from above the site the view of the harbour is largely obscured by tree canopy. As one drops lower down the hill and the subject house first comes into view the upper storey balcony and roof is clearly above the heritage items of Nos. 20 and 20A. And, as one’s eyes search for the water view down the line of houses, the upper storey verandah of the subject site can be seen silhouetted against the water.
54 Because it is partly against and above the blocky form of No. 24, the detail of the balcony and its roof and their lightness of appearance soften the mass of No. 24 and relate well to the roofed verandahs of the adjoining heritage items. If the proposed enclosure is approved, its current benefit to the streetscape would be lost.
55 I do not believe using No. 24 as a justification for the proposal is acceptable. Allowing the proposal would only extend the unsympathetic elements further into the streetscape.
56 I have reached the conclusion, the proposal to enclose the first floor balcony of No. 22 Datchett Street is antipathetic to the streetscape and conservation value of the precinct and Issues 1, 2, 3, 4, 6, 7 and 8 are determinative.
57 I see no reason to require the surrender of Development Consent D/2002/588. It provides a commodious attic room some 7.5 m x 4 m in size with Juliett balconies at each end and a dormer window and three roof lights. It provides considerable space for use by the residents.
58 The rendering of the foundation brickwork to the house on Datchett Street side seems unnecessary in the circumstances. Therefore the appeal can be refused and existing conditions of consent No. DA04/701 remain undisturbed.
59 The orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits A, 1 and 2.
___________________
K G Hoffman
Commissioner of the Court
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