Raiti v Leichhardt Municipal Council [2005] NSWLEC 220

Land and Environment Court of New South Wales

CITATION : Raiti v Leichhardt Municipal Council [2005] NSWLEC 220

APPLICANT John Raiti

PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 11302 of 2004

CORAM: Tuor C.

Development Application :- Alterations and additions to an existing single storey house Setback from side and rear boundary and compliance with Building Location Zone KEY ISSUES: Impact on streetscape of parking and front setback Impact on adjoining residents - overshadowing and bulk

LEGISLATION CITED: Leichhardt Local Environmental Plan 2000

DATES OF HEARING: 28/04/05 EX TEMPORE JUDGMENT DATE : 04/28/2005

APPLICANT Mr Howard, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

28 April 2005

11302 of 2004 Raiti v Leichhardt Municipal Council

PRELIMINARY JUDGMENT

1 This is an appeal against the refusal by Leichhardt Municipal Council of a development application for alterations and additions to an existing single storey house at 59 Louisa Road, Birchgrove, to provide a two storey dwelling and off street parking for two cars. 2 A description of the site, its context and the history of the application are provided in the Statement of Basic Facts, the council officer's report and the Statement of Environmental Effects. 3 The appeal was heard on site and no written expert evidence was provided. Ms D Laidlaw, town planner for the council, and Mr H Sidaway, the architect of the proposal, provided a joint statement on the overshadowing issue and oral evidence on the other aspects of the proposal. Four residents also provided evidence including the owners of the adjoining properties: Mrs Heywood, 61 Louisa Road and Mr P Reed on behalf of Mr and Mrs Hudson, 57 Louisa Road. 4 The main issues in the case are the streetscape impact of the front setback and the car parking, the setback of the proposal from the side and rear and the resultant impact on bulk and scale, privacy and overshadowing of adjoining properties. 5 In relation to the car parking, the proposal provides two spaces at the front of the house with consequently little landscaping except for side planter boxes. To provide the depth for the car parking the house is set back further than the existing house and more than the two adjoining houses. The applicant's submission was that two spaces was not an unreasonable expectation for the house, there are a number of examples of car parking occupying the street frontage in Louisa Road, and that the proposal is consistent with the existing character of the area as described in the Birchgrove/Elkington Park Distinctive Neighbourhood Statement in the Leichhardt Development Control Plan 2000 (DCP). 6 Council's submission was that the existing examples of car parking spaces in the frontage of properties detract from the streetscape and that the controls in the DCP do not seek to emulate these examples. The controls specifically seek to integrate car parking with landscaping and to minimise cross overs in the street. 7 I agree with the council's submission. Where almost the entire frontage is occupied by car parking and cross overs, it does not contribute to the streetscape and places constraints on the front setback of the building. A single space with landscaping and potential for part of the frontage of the building to better relate to the adjoining building would have lesser impact on the streetscape. 8 In relation to side setbacks, the front of the site is only 7.62 m wide and therefore the parties agreed that it is unreasonable for the proposal to comply with the side setback controls in the DCP, especially where it adjoins the blank wall of 61 Louisa Road. The existing house is set back only 450 mm from the northern boundary of 57 Louisa Road, which is also built close to its boundary and has windows along its length. 9 I accept that the constraints of the site mean that it is reasonable for the second storey to continue the existing setbacks for part of its length. However, this reduced setback is not reasonable if it results in impacts of bulk, overshadowing or privacy. This lack of side setback is exacerbated where the proposed second storey extends beyond the built form of the adjoining building. The Building Location Zone (BLZ) control in the DCP seeks to control this impact and the relationship between buildings. The parties disagreed as to whether the BLZ applies to the first floor or only to the ground floor. 10 I find that the intent of the control is to ensure that the location of buildings relate to that of adjoining development, which is equally relevant on both the ground and first floor. Even if the control were to only specify a BLZ at ground level (being the average setback of adjoining properties), it also states that upper floors may not occupy the entire BLZ. The criteria to establish the extent of the upper floors would be similar to those used to establish the ground level BLZ with the purpose being that the upper floors should relate to the upper floors of adjoining buildings. 11 Numbers 57 and 61 Louisa Road are two storey houses of architectural merit that are unlikely to be redeveloped. It is appropriate that the proposal should respond to the setback of the dominant parts of the upper levels of these two houses. This is particularly important as the site adjoins Birchgrove Park and the line of the buildings along the curve of the park is highly visible from the park. 12 While there is not a strict line of the rear setbacks, more recent buildings to the south follow a rigid straight setback, and properties to the north, notably the block of flats, project towards the park following its curve. The site, the two adjoining properties to the north and No. 57 to the south form a fairly cohesive group. The upper level of the proposal, including the balcony, should respond to the setback of these adjoining buildings. 13 The balcony of the proposal is a substantial structure with side privacy screens and a one metre wide eaves projection. The balcony is forward of both No. 57 and No. 61 and breaches the setback line formed by these buildings. The wall of the proposed house lines up with No. 57, but projects forward of the upper storey of No. 61 by approximately four metres to the wall, and approximately 2.5m to the verandah. 14 This additional bulk may not be an issue in a less prominent location but the line formed by the rear of the houses is visible from the park. There was no reason that was put to me to support the necessity to break this setback line. The additional bulk is unreasonable from No. 61 based on the planning controls, and is exacerbated by the reduced side setback. The bulk also has overshadowing impact on the living areas of No. 57, which could be avoided or further minimized by a proposal which better responded to the rear setback control in the area. 15 For these reasons the application in its current form does not warrant approval. However, amended plans could be prepared that address the issues outlined above if this is agreeable to the parties. 16 The proceedings were adjourned for the applicant to consider this preliminary judgment.