Land and Environment Court New South Wales Medium Neutral Citation: Lannan v Inner West Council [2020] NSWLEC 1536 Hearing dates: 22 October 2020 Date of orders: 6 November 2020 Decision date: 06 November 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. D/2019/271 for a partial first-floor addition to the existing cottage at 5 Sardinia Place, Birchgrove, is refused. (3) The exhibits, other than 1, 6, 7 and A, are returned. Catchwords: DEVELOPMENT APPLICATION – partial first-floor addition to an existing single storey terrace house – impact on the heritage significance of the heritage conservation area – impact on the amenity of adjoining properties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Lannan v Inner West Council [2020] NSWLEC 20 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: David Lannan (Applicant) Inner West Council (First Respondent) Andrew Toland (Second Respondent) Tiffany Hambley (Third Respondent) Representation: Counsel: M Seymour (Applicant) S Turner (Solicitor) (First Respondent) J Reid (Second and Third Respondents) Solicitors: Hones Lawyers (Applicant) Inner West Council (First Respondent) Addisons (Second and Third Respondents) File Number(s): 2019/396543 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2019/271 for a partial first-floor addition to the existing cottage (the proposal) at 5 Sardinia Place, Birchgrove (the site) by Inner West Council (the Council). 2. The neighbours, at 3 Sardinia Place, Birchgrove, were joined as parties to the proceedings pursuant to s 8.15(2)(a) of the EPA Act on 2 March 2020 (Lannan v Inner West Council [2020] NSWLEC 20) (the intervenors). 3. The appeal was subject to conciliation on 4 March 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. Issues 1. The Council's contentions can be summarised as: * The proposal will not make a positive contribution to the heritage values of the Birchgrove and Ballast Point Road Heritage Conservation Areas and the Birchgrove Distinctive Neighbourhood. The development is inconsistent with the pattern of the surrounding development and is contrary to the applicable heritage provisions. 1. The second and third respondents' contentions can be summarised as: * The proposal will have a detrimental impact on the heritage significance of the group of six weatherboard terraces at 1-11 Sardinia Place, Birchgrove, which together create an intact late-Victorian working-class streetscape. * There are no precedents for a first-floor addition under the current Development Control Plan. * The proposal does not retain the existing fabric of the cottage. * The proposal will have unreasonable amenity impacts on 3 Sardinia Place, Birchgrove, as it reduces the solar access during the winter solstice to the main living area and the north-facing courtyard. 1. The intervenors sought deferred commencement conditions be imposed on any consent granted requiring the proposal to be amended to delete the ensuite bathroom; setback the external wall of the first-floor addition 1.5m from the ground floor alignment; indicate window proportions of the northern elevation that minimise overlooking and have a sill height of 1.5m; and add privacy screens to first-floor windows (Ex 20). The applicant submitted that the deferred commencement conditions are not accepted and the imposition of any one of the deferred commencement conditions on the consent would represent a constructive refusal of the application. The site and its context 1. The site is on the south-eastern side of Sardinia Place and the site area is 136.8sqm. The existing dwelling is a single storey late-Victorian cottage, one of a group of six and a pair with 7 Sardinia Place, clad in weatherboards with a pitched roof and a rear skillion roof. The dwelling has undergone alterations and additions. 2. The neighbour to the south-west of the site, at 3 Sardinia Place, has a northern side courtyard, adjacent to the shared boundary. The neighbour to the north-east, at 7 Sardinia Place, has a first-floor addition to the rear of the original roof ridge of the cottage, that runs parallel with the street front boundary. Both adjoining neighbours have a small studio room at the rear of their properties. 3. The Council recently granted consent for a rear addition, including a new first-floor bedroom suite, to 11 Sardinia Place (Ex F). The first-floor addition is located to the rear of the original cottage. The intervenors submitted that the architectural drawings for which consent has been granted do not indicate the dimensions or height of the approved development. The proposal 1. The proposal is for alterations and additions to the existing dwelling, as follows: * Ground floor: new sliding doors in the rear elevation and a new stair in the existing living room at the rear of the cottage; * First floor: new first-floor addition at the rear of the cottage, to provide a main bedroom and ensuite bathroom. The addition includes batten screens to the front and back elevations of the first-floor addition. Planning framework 1. The site is zoned R1 General Residential, and the proposal is permissible with consent, pursuant to Leichhardt Local Environmental Plan 2013 (LLEP 2013). The objectives of the R1 zone, to which regard must be had, are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. Demolition requires development consent (cll 2.7 and 5.10(2)(a)(iii) of LLEP 2013). 2. There is no height of buildings development standard for the site. 3. Clause 4.3A of LLEP 2013 is a development standard for landscaped areas in the R1 zone. Clause 4.3A is in the following terms: 4.3A Landscaped areas for residential accommodation in Zone R1 (1) The objectives of this clause are as follows— (a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents, (b) to maintain and encourage a landscaped corridor between adjoining properties, (c) to ensure that development promotes the desired future character of the neighbourhood, (d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water, (e) to control site density, (f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space. (2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential. (3) Development consent must not be granted to development to which this clause applies unless— (a) the development includes landscaped area that comprises at least— (i) where the lot size is equal to or less than 235 square metres—15% of the site area 1. The floor space ratio (FSR) pursuant to cl 4.4(2B)(b)(i) of LLEP 2013 for the site is 1:1 and the applicant submitted that the proposal has a FSR of 0.76:1. 2. The site is within the Birchgrove and Ballast Point Road Heritage Conservation Area (HCA) (Pt 2, Sch 5 and Heritage Map - Sheet HER_006 of LLEP 2013). Clause 5.10(4) of LLEP 2013 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the HCA. 3. Leichhardt Development Control Plan 2013 (LDCP 2013) applies to the site. 4. The objectives for alterations and additions, at C1.3 of LDCP 2013, are: "a. complements the scale, form and materials of the streetscape including wall height and roof form; b. where an alteration or addition is visible from the public domain it should appear as a sympathetic addition to the existing building; c. makes a positive contribution to the desired future character of the streetscape and any heritage values associated with it; d. is compatible with neighbourhood character, including prevailing site layout; e. protects existing residential amenity, including the retention of adequate private open space and ensuring adequate sunlight, natural ventilation and privacy to the existing dwelling and surrounding dwellings; f. maintains views and glimpses from the public domain to natural and built elements that contribute to local character and sense of place; g. reasonably protects views obtained from surrounding development and promotes view sharing; h. retains existing fabric wherever possible and maintains and repairs, where necessary, rather than replaces the fabric." 1. The overall form of alterations and additions are to be compatible with the scale, form and material of the existing dwelling and adjoining dwellings, including wall height and roof form, at C1(b) of C1.3. Appropriate roof forms for rear additions depend on the context of the site, at C15 of C1.3. 2. LDCP 2013 includes suggested design approaches for additions to different forms of dwellings, at Appendix B Building Typologies. 3. The objectives for heritage conservation areas, at C1.4 of LDCP 2013, are: "a. does not represent an unsympathetic alteration or addition to a building; b. encourages the protection, restoration, continued use and viability of buildings for their original purpose; c. encourages the removal of unsympathetic elements; d. is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter; e. conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting; f. maintains the visual unity of groups of buildings, in particular semi-detached and attached terraces; g. makes an appropriate visual and physical distinction between the existing building and new parts of the building; h. protects and enhances views of the existing building from the public domain; and i. new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter." 1. The site is within the Birchgrove Distinctive Neighbourhood, at C2.2.2.6 of LDCP 2013. The controls for this area include to conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi-detached housing with a prevalence of hipped, pitched and gable roof forms; to conserve the single and double storey, freestanding form, style and materials characteristic to each street; where a consistent pattern of architectural style and form exists, preserve this consistency on each street; and maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials. 2. The objectives for site layout and building design, at C3.2 of LDCP 2013, include to ensure adequate separation between buildings for visual and acoustic privacy, solar access and circulation; and ensure that buildings are constructed within an appropriate Building Location Zone (BLZ) from the front and rear boundary to protect neighbourhood features such as streetscape, private open space, solar access and views. The BLZ is the part of the subject site where it can be reasonably expected that a building can be located. The BLZ is determined by having regard to only the main building on the adjacent properties. In order to respect the pattern of development and amenity of neighbouring properties, the BLZ is determined on a floor by floor basis. The onus is on the applicant to demonstrate that the proposed building is consistent with the pattern of development in the immediate locality in the event of any proposed variation to the BLZ, and that amenity to adjacent properties is protected, the proposed development is consistent with the desired future character and scale of surrounding development; and that the proposal is compatible in terms of size, dimensions, privacy and solar access of the private open space, outdoor recreation and landscaping. 3. The objectives for solar access, at C3.9 of LDCP 2013, is to protect residential amenity for adjoining development. Control C13 requires development ensure three hours of solar access between 9am and 3pm during the winter solstice for north facing glazing of living rooms on allotments with a north-south orientation. Public submissions 1. Damian Barker gave evidence onsite on behalf of his mother, the resident of 7 Sardinia Place, and the Court, in the company of the parties and their experts, viewed the site from the rear courtyard and first-floor addition at 7 Sardinia Place. Mr Barker's concerns are summarised as: * The scale of the proposed first-floor addition is more appropriate for a corner site not the middle of a row of dwellings. * The row of cottages was originally built in one line. * Mr Barker was the architect for the alterations and additions to 7 Sardinia Place, including the first-floor addition, which was constructed in 2012. The approval was negotiated as part of a s34 conciliation conference with Council which required the first-floor addition to be tucked into the roof form. The site faces south so the highlight windows to the north bring in light. * The privacy battens proposed on the first floor of the proposal will not provide effective privacy for his mother's courtyard and are not in accordance with Council's controls for privacy measures. * Mr Barker is concerned about the precedent that this development would create. If it is replicated in the row, it would leave 7 Sardinia boxed in. The outlook from the first-floor bedroom of his mother's dwelling would be severely impeded by two storey elements built to the side boundary. * Mr Barker supports the concerns of 3 Sardinia Place in terms of loss of light as a result of the proposal as it will be impacted unreasonably. Expert evidence 1. The applicant relied on the expert evidence of Michelle Chapman (planning) and Graham Brooks (heritage). The Council relied on the expert evidence of Glen Hugo (planning) and Sinclair Croft (heritage). The intervenors relied on the expert evidence of Alison McCabe (planning) and Jennifer Hill (heritage). 2. The joint report of the planning experts was admitted into evidence as Ex C and the joint report of the heritage experts was admitted into evidence as Ex D. Contravention of the landscaped areas for residential development in zone R1 development standard 1. The existing footprint of the dwelling results in a landscaped area of 13sqm and the development standard under cl 4.3A requires 20.5sqm of landscaped area. The proposal is for a first-floor addition and does not change the footprint of the existing dwelling. 2. The applicant provided a written request seeking to justify the contravention of the landscaped area development standard, pursuant to cl 4.6 of LLEP 2013 (Ex G). 3. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]). The applicant's written request (Ex G) 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] and repeated in Initial Action at [17]-[21]: * the objectives of the development standard are achieved notwithstanding non-compliance with the standard; * the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; * the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; * the development standard has been abandoned by the council; * the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). 2. The applicant's written request justifies the contravention of the landscaped area development standard on the bases that compliance is unreasonable or unnecessary for the following reasons: * The existing landscaped area of the site is not changed by the proposal; * The addition of 7.5sqm of landscaped area on the site would afford no specific planning purpose; * It would unreasonable to require the existing footprint of the dwelling to be reduced. 1. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 2. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the landscaped area development standard on the basis that the proposal does not change the existing footprint of the dwelling and the existing landscaped area on the site is maintained. I am satisfied that this can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I am not satisfied that the proposal is in the public interest because, for the reasons set out below, it is inconsistent with the R1 zone objective to provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings. The proposal is inconsistent with the pattern of development established by neighbouring properties 1. The building envelope of the proposed first floor is located at the rear of the existing building, positioned over the existing skillion roof of the living room that opens onto the rear courtyard. I understand from the applicant's submissions and the plans in the Statement of Environmental Effects (Ex G) that the proposal was amended following the conciliation conference to locate the proposed first-floor bedroom at the rear of the dwelling, instead of its previous location behind the existing ridge to approximately mimic the form of the existing first-floor addition to the north-eastern neighbour at 7 Sardinia Place, driven by concerns about overshadowing the northern side courtyard of the adjoining property at 3 Sardinia Place. It is evident that the applicant has made a genuine attempt to find a solution that is acceptable to the intervenors. 2. I accept the applicant's submissions that the imposition of the deferred commencement conditions (Ex 20) would result in an unsatisfactory outcome and, in my view, an uncertain outcome, because they send the applicant back to the drawing board. I accept and agree with Mr Hugo's expert evidence and the applicant's submission that the addition of a first-floor main bedroom suite to the existing cottage is a reasonable expectation, given that three of the group of six weatherboard cottages include a partial first-floor addition or have obtained development consent for a partial first-floor addition. 3. It is evident from the development at 7 Sardinia Place that locating a well-designed addition behind the ridge of the original cottage maintains the character of the group of cottages when viewed from Sardinia Place and the contribution made by this group to the collective heritage significance of the HCA. The proposal, however, is inconsistent with the pattern of built form established by existing additions to cottages within the row and would introduce a discordant element to the row of cottages. 4. The attempt to eliminate any overshadowing of the northern side courtyard of the adjoining property at 3 Sardinia Place has been prioritised in the brief for the scheme in the current proposal, in an attempt to satisfy the concerns of the intervenors, but results in a form that is incompatible with adjoining development. The proposal increases the overshadowing of the rear courtyard of 3 Sardinia Place during the late morning of the winter solstice; it results in overlooking of neighbouring courtyards which requires the windows to be screened resulting in poor internal amenity; and it locates the building bulk at the rear of the existing building, over an existing skillion roof, in a position that is entirely contrary to the established form of additions to the rear of this group of cottages. The priority should instead be to locate the building bulk of a partial first floor in a position that is consistent with the development of neighbouring cottages and then to refine the building envelope to minimise the overshadowing of adjoining open space and glazing; recognising that the orientation of these cottages is not ideal and they are on very small allotments, so some amenity impacts are inevitable. It is difficult to achieve a reasonable outcome when the generic controls in LDCP 2013, which give little regard to scale, are strictly applied to small cottages on very small allotments with a rear orientation to the south-east. Measuring overshadowing only on the winter solstice is a blunt tool to genuinely assess the impacts of overshadowing caused by a building envelope for a first-floor addition on a row of small cottages. The impact of overshadowing would be more accurately judged by also measuring overshadowing on the equinoxes. The form of the addition to each cottage must work cooperatively within the group to best preserve the amenity of neighbouring cottages and courtyards. Conclusion 1. The proposal is not in the public interest because the proposal is inconsistent with the R1 zone objective to be compatible with the pattern of surrounding building and landscaped areas. 2. The proposal is not compatible with the prevailing site layout and form of neighbouring dwellings, pursuant to the objectives for alterations and additions at C1.3 of LDCP 2013. The proposal does not maintain the visual unity of the group of cottages, pursuant to the objectives for heritage conservations areas at C1.4 of LDCP 2013. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. D/2019/271 for a partial first-floor addition to the existing cottage at 5 Sardinia Place, Birchgrove, is refused. 3. The exhibits, other than 1, 6, 7 and A, are returned. ____________ Susan O'Neill Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2020