Wherry v Leichhardt Council

[2011] NSWLEC 1312

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wherry v Leichhardt Council [2011] NSWLEC 1312

Hearing dates:

28 September 2011

Decision date:

28 September 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

Consent Orders:

(1)The appeal be upheld

(2)Modification application No M/2010/169 made pursuant to s 96 Environmental Planning and Assessment Act 1979 to modify Development Consent No D/2006/605 in relation to premises at 7 Little Edward Street, Balmain be approved subject to the conditions contained in Annexure A hereto.

(3)The exhibits be returned except 1, 2, A, E and F.

Catchwords:

Development application: extension of elevated parking platform, view, privacy and acoustic impacts.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Leichhardt LEP 2000
Leichhardt DCP 2000

Cases Cited:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Lynette Wherry (Applicant)

Leichhardt Council (Respondent)

Representation:

Mr D Loether (Applicant)

Ms R McCulloch (Respondent)

File Number(s):

10602 of 2011

Judgment

1. This appeal was lodged against council's refusal of a s 96 application to modify a consent at 7 Little Edward Street, Balmain East.

1. The modification proposed the extension of the existing elevated car parking platform so as to create a tandem parking space for two vehicles. This space is adjacent to the rear boundary with 4 and 6 William Street.

1. A detailed statement of facts and contentions together with reply were filed and the contentions initially identified concerned amenity impacts on the adjoining properties at 4 and 6 William Street, in particular loss of views, privacy and possible acoustic impacts. The second issue concerned potential unreasonable impacts arising from increased vehicular movements in Little Edward Street due mainly to the narrow width of existing roads.

1. During the lead-up to the appeal there has been further conferencing between the parties resulting in agreement to some amendments to the proposals, which involved a lowering of the parking platform to maintain views and deletion of the carport component over the parking extension, again to minimise view losses particularly for 6 William Street.

1. As a result of this conferencing the parties now agree to consent orders, which include conditions that would limit the type and size of vehicle that could access the new parking space. Consequently, the consent orders were notified and the objectors on behalf of No 6 were given the opportunity to express their concerns. This property was visited on the site inspection today.

1. I rely on the details in the statement of facts and contentions, which includes the following details.

Planning controls

1. The property is subject to the following controls. Firstly there is the Leichhardt LEP 2000 under which the site is located within the Residential zone and the proposal is permissible with consent. Also, under this LEP the site is within a Heritage Conservation Area and therefore the provisions of cl 16(7) and 16(8) apply. The relevant objectives for consideration are in cl 15 and include:

(a)   to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation,

(b)   to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines,

(c)   to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items,

(d)   to allow compatible and viable adaptation and re-use of the fabric of heritage significance,

(e)   to ensure the protection of relics and places of Aboriginal cultural significance in liaison with the Aboriginal community.

1. Other controls concerning urban form, building elements and neighbourhood controls are contained in the DCP.

The evidence

1. This application has been subject to a detailed planning assessment by the council officers, which is exhibit 2, including a view impact assessment, which is based on the planning principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 .

1. This assessment has also dealt with all the objections that were lodged and it provides detailed response comments. The planning assessment also includes internal referrals to other sections of council, including the development engineer and the heritage adviser who have raised no objection to the proposal.

1. Consequently, this planning assessment concludes that this application has been assessed under Section 96 of the Environmental Planning and Assessment Act 1979 and is considered to be satisfactory and therefore the application was recommended for approval subject to the amendments listed.

1. Apart from this, a further planning review was undertaken by S Kerr, planner who considered the statutory controls, view sharing impacts, acoustic impacts and concluded that:

• He agreed with the assessment and recommendation of approval contained in the council planner's report. Also, he noted the support of the council engineer with the amended design and the council's heritage officer raised no objections.
• He supported the design amendments to mitigate potential environmental impacts through deletion of the carport roof and amendment of the parking deck.
• The proposal complies with the relevant provisions of the LEP 2000 and DCP 2000.
• The proposal will not result in any unreasonable loss of privacy, views and amenity upon neighbouring properties at 4 and 6 William Street and that the additional parking space will not compromise vehicular movements along Little Edward Street.
• The proposed development is reasonable, satisfies relevant environmental planning controls and satisfies site and surrounding amenity conditions and should therefore be approved

1. In addition to this, there was also a review of the traffic impacts by Mr West in response to the second issue. It provides an analysis and details of the proposed works and his conclusion is that:

• The proposal would not result in any adverse traffic or road impacts.
• The proposal will have net positive impacts on availability of parking on the surrounding streets.
• The design of the deck and associated boundary fencing will not adversely impact on sight lines for those William Street residents who share a common boundary with the property.
• The design of the deck will satisfy the design requirements of AS 2890.1 in terms of length and deck grade.

Conclusions

1. Having considered the evidence and undertaken the view I am satisfied that the consent orders merit approval. Firstly, I am satisfied that the application relates to substantially the same development. Secondly, the consent orders have been notified and the objectors advised and their objections considered. Thirdly, as previously mentioned, the proposal has been subject to the detailed planning assessment of its merits and I do not consider that there is any substantive evidence that would lead to a rejection of the conclusion of that assessment.

1. I accept that the main impact is likely to be on the amenity of 6 William Street but considering that the platform has been lowered, then the subsequent parking should not interfere with the views towards the water.

1. In this regard, the conditions require that the already approved development for the carport over the existing platform to have limited height entry and to be completed prior to the use of the new extension. This should impose a restriction on the type of vehicle and therefore maintain view lines across the top of the parking area.

1. Insofar as concerns were raised about privacy and possible acoustic impacts, in considering the balancing of the competing interests, I think that the use of the new car space will require due care in its use because of its location and size and I consider that the possible impacts would be minor. Therefore I rely on the expert opinions that the approval of the amended plan represents an appropriate balance in the respective interests.

1. I am also satisfied from the traffic review, that with the approval of the application is unlikely to cause any significant impact on traffic efficiency and safety in the area. Whilst submissions were made that previous councils sought to restrict parking on the site, I also understand that under other previous consent two vehicles were allowed on the site but that application lapsed.

1. In summary then, the merits of the modification application have been comprehensively reviewed in terms of the planning controls and I am satisfied to rely on the conclusions that the consent orders be granted.

NOTE

1. Prior to the making of orders, a discussion took place about a variation of the condition concerning the prior construction of the carport. This resulted in a further agreement between the parties, which provides that "until such times as the construction of the carport over the eastern car space is completed, a bar shall be erected at the street boundary at a height of 2.2m above the parking platform so as to restrict the height of vehicles which may be parked in the parking spaces".

1. Having considered this further agreement, I am satisfied the consent orders, including the amended condition should be granted.

Court orders

1. The Court then orders by consent:

(1)   The appeal be upheld.

(2) Modification application No M/2010/169 made pursuant to s 96 Environmental Planning and Assessment Act 1979 to modify Development Consent No D/2006/605 in relation to premises at 7 Little Edward Street, Balmain be approved subject to the conditions contained in Annexure A hereto.

(3)   The exhibits be returned except 1, 2, A, E and F.

R Hussey

Commissioner of the Court

Decision last updated: 03 November 2011