Land and Environment Court of New South Wales CITATION : Cawsey v Leichhardt Municipal Council [2004] NSWLEC 135 APPLICANT Kim Cawsey PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 10698 of 2003 CORAM: Talbot J KEY ISSUES: Appeal :- purpose of development standard - non-compliance - weight attributed to evidence of expert witnesses Development Application :- rejection of SEPP 1 objection - number of opposing expert witnesses not determinative State Environmental Planning Policy No 1 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 cl 17(c), cl 17(a), cl 19(2) Leichhardt Development Control Plan 2000 CASES CITED: DATES OF HEARING: 31/03/2004, 01/04/2004 DATE OF JUDGMENT: 04/08/2004 APPLICANT Mr J A Cole (Solicitor) SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr P J McEwen SC SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10698 of 2003 Talbot J 8 April 2004 Kim Cawsey Applicant v Leichhardt Municipal Council Respondent Judgment Introduction 1 The site upon which the applicant proposes to carry out development the subject of this appeal is known as 104 and 104a Louisa Road, Birchgrove ("the property"). The property comprises lot 1 and lot 2 DP 700405 and has a 15 metre wide street frontage on the north side of the road extending back to a water frontage along the Parramatta River approximately 10 metres below the level of the street. 2 An existing two-storey house on the property sits on a rock platform about one metre below street level with steps leading down to the harbour through a series of terraces. The neighbours on either side are three-storey dwellings. On the east side the neighbours building is of contemporary design whereas on the west side there is a three-storey Victorian semi-detached dwelling. There is a general consensus that Louisa Road has a mix of modern and old houses. Many of the latter have been modernised. There is a marked degree of diversity in age, colour, form, presentation and landscape treatment. 3 The property itself has some historical significance, more particularly because the celebrated Glass Stainer, John Lamb Lyon and his wife Elizabeth, were former occupants. Lyon built a workshop at the rear of the property and converted the front room of the house into a studio. The house no longer presents as the house first built in 1882 or the house in which Lyon lived. There is limited remaining fabric that is associated with the history of the property. A six-panel stained glass window remains, although not in its original location. 4 The proposal designed by local resident architect, Keith Pike, is for the demolition of the existing two-storey house and the construction of a new three-storey house on roughly the same footprint using the same platform as the existing house. 5 The property is in a residential zone under Leichhardt Local Environmental Plan 2000 ("the LEP") and dwellings are permissible with consent. It is incorporated in the Balmain Conservation Area. Leichhardt Development Control Plan 2000 ("the DCP") applies. 6 The primary concern of the issues raised by the council can be summarised as a failure of the proposal to have sufficient regard to the council's requirements relating to the appearance of the building in terms of architectural style, scale, bulk massing proportions, materials and colours in the context of the Balmain Conservation Area, the existing streetscape, character and the aspect from the river. The expert evidence 7 To use the words and description of Leichhardt Municipal Council's ("the council") Town Planning and Heritage Consultant, Brian MacDonald, the proposed building is a very assertive architectural design. Set over the whole of the two allotments, he says, it will present as a powerful rectangle form with strong horizontal emphasis. According to Mr MacDonald, the modelling of the elements will accentuate rather than minimise the visual impact of its overall bulk and form seen in the street and from the water. He describes the house as having an interesting design which, in another context, in a suburb dating from the late 20th Century, would fit well and be admired. In the context of Louisa Road and Long Nose Point, however, it is out of place and would be another increment of damaging change diminishing the locality's heritage significance. The three bay arrangement of the design on both sides of the proposed building does not succeed in fitting into the conservation area context. 8 On the other hand, Ron Edgar, a Heritage Consultant engaged by the applicant, is of the view that the proposal does not threaten the cultural heritage or its interpretation through its bulk and scale which, he says, is mitigated by the comparative width of the property, as well as the detail, natural colour and form of the proposal. Mr Edgar claims that the proposal provides incremental change to the character of the area and is part of the evolving character of the precinct, yet does not significantly alter the character of the area. 9 Bruce Threlfo, a Consultant Planner and Engineer, also sees the demolition of the existing house and its replacement with a contemporary building as a continuation of the historical evolution of the street, which now contains a significant number of contemporary homes, while many traditional homes have also been given a contemporary character. Mr Threlfo presented a State Environmental Planning Policy No. 1 ("SEPP 1") objection in respect of the exceedance of a maximum floor space ratio ("FSR") of 0.7:1 set out in cl 19(2) of the LEP. 10 The proposal is also supported by Architect and Town Planner, Michael Harrison. He believes that the proposed building has an appropriate bulk and scale which is achieved by the use of generous setbacks for the upper level to Louisa Road and by the use of terraces and verandahs to the rear. It is his opinion that the proposal is entirely acceptable when viewed from the harbour and foreshore. He further says the light is consistent with neighbouring buildings and has vertical proportioning. 11 Professor Quarry states that, in his opinion, the proposal is worthy of approval and is a suitably designed building whose presence will provide a superior building to that which will be demolished. He describes the building as "…crisp, domestic and modest – a refreshing contribution to a precinct that has often been marred by confused and pretentious intrusions". Rather than being aggressive, he says the building withdraws. It is reticent. 12 Following a joint conference in accordance with Standard Expert Witness Practice Direction No. 1, the town planning experts have agreed on the following matters:- …contemporary design is an appropriate approach in the context and it is inappropriate to create period style buildings. …side front and rear building setbacks are not in dispute. …the palisade fence should be the same height as the existing palisade fence at 102 Louisa Road. …the garage door at 4200mm wide is acceptable. 13 The heritage experts have also agreed on a number of issues as follows:- …the existing building retains insufficient association with the ownership and occupancy of John Lamb Lyon and his family in its physical fabric and form to have a level of significance that would warrant its listing as a heritage item or its retention in its own right. …with the principle that contemporary design is an appropriate approach and it is inappropriate to create "false" period style buildings in the context of the conservation area. …the palisade fence should be the same height as the existing palisade fence at 102 Louisa Road. …the garage door at 4200mm wide is acceptable. …the western part of the building was built on a separate lot after the ownership and occupancy of John Lyon. …with regard to Clause 15(b) of Leichhardt LEP 2000 that the term "place" applies to the to [sic] Louisa Road and Long Nose Point as the locality of the subject site. …conservation and interpretation of the large stained glass window, that is associated with John Lyon, at the Power House Museum, is preferable to its inclusion in a new house on the site. 14 Mr Pike, Professor Quarry and Mr MacDonald have resolved the following matters in conference:- …contemporary design is an appropriate approach and it is inappropriate to create "false" period style buildings in the conservation area. The actual design of the house as a work of architecture, setting aside the context, is not an issue… …side, front and rear building setbacks are not in dispute. …the palisade fence should be the same height as the existing palisade fence at 102 Louisa Road. …the garage door at 4200mm is acceptable. …the conservation and interpretation of the large stained glass window, that is associated with John Lyon, at the Power House Museum, is preferable to its inclusion in a new house on the site. …the existing stone steps to the water are steep and irregular and their replacement is warranted. In the event that new retaining walls are to be built…they should have uncoursed sandstone finish similar to the existing upper level sandstone retaining wall on the east side of the property. Colour - …the originals of the coloured photomontages … show that the main building colour is not white (as distorted by the photocopied versions of the photomontages). …a light toned colour similar to Porter's "Pumice" is proposed. 15 Other matters regarding some urban design issues have been resolved. However, significant points of disagreement remain. These are summarised as follows:- (a) The appropriateness of the design for the particular context; (b) The method of measuring floor areas and the interpretation of gross floor space; and (c) Whether the objection under SEPP 1 should be upheld. The appropriateness of the design 16 I agree with Mr MacDonald that the powerful geometric, predominantly horizontal, composition of the proposed building across two allotments will make it stand out assertively from it surroundings. The building will read as a large rectangular form much larger in scale than its neighbours. I am persuaded that the straight roofline will accentuate this effect. Although the two bays separated by the glass wall fronting the river will reduce the impact to some extent, I still see the building as predominant and uncharacteristic of the surrounding articulated forms of buildings. The cantilevered upper roof exacerbates the strong horizontal lines and, as Mr MacDonald says, the uncompromising wide horizontal floating roof plane is completely at odds with the random skyline. 17 Despite the protestations by Mr Edgar, Professor Quarry, Mr Harrison, Mr Threlfo and Mr Pike, I prefer the conclusion of Mr MacDonald which I am able to confirm by perusing the plans and photomontages available to the Court. I also have the benefit of a comprehensive view of the site and its environs. The court will not be swayed to adopt a particular point of view merely because a plethora of experts are called to support each other's opinion. The principal duty of an expert witness is to assist the Court to reach the correct decision. Mr MacDonald has been successful in persuading the Court that his approach and perception is the right one. The method of measuring floor areas 18 The experts, Mr MacDonald, Mr Threlfo and Mr Pike have reached agreement on the mathematical basis for FSR calculation but disagree on the interpretation of what is floor space. The LEP contains a definition of FSR and gross floor area as follows:- Floor space ratio means the ratio of the gross floor area of a building to the site area of the land on which the building is erected. Gross floor area means the total area of a building's floorplates, measured between the outer edges of the outside walls or the centre line of any party wall, and includes mezzanines, attics, internal car parking spaces, garages, lofts and studios. It does not include projections outside the external walls of the building, paved areas, voids or basements used for car parking, where the car parking area does not protrude more than 1 metre above ground level. 19 Mr Threlfo and Mr Pike treat the area under the stairs at basement level as a void and do not count the area equating to the stair and landing at the top level to avoid double counting. 20 There is also a dispute as to whether the area of the basement should be included as floor space. The argument for its exclusion appears to be that it makes no contribution to the overall bulk, scale and form of the proposed building. 21 As a matter of construction the definition of gross floor area is inclusive and includes all the floorplates except to the extent of the particular exclusions, none of which cover the disputed areas in the present case. The argument against double counting is reasonable and does not offend the definition. Irrespective of whether the cellar contributes directly to bulk and scale, which is expressly not conceded by the council, the floor area of the cellar is clearly encompassed by the definition notwithstanding that the ceiling height is restricted to about 1.6 metres and it is situated below the street level under the garage. 22 By including the cellar and voids but not the stairs, Mr MacDonald contends that the FSR is 0.89:1. After excluding the cellar Mr Threlfo says the FSR should be accepted as 0.77:1. Even at 0.77:1 there is a ten per cent exceedance of the development standard. It is not inappropriate, in my view, to adopt the ratio of 0.89:1 for the purpose of assessment. 23 As a matter of general principle, an FSR standard is imposed in residential areas to control bulk, scale and built form of structures. Notwithstanding the general principle, in the absence of other controls it can be also regarded as a control on density. Floor space ratio – SEPP 1 objection to the development standard 24 Clause 19(2) of the LEP provides that consent must not be granted to the carrying out of residential development on land within the Balmain area if it will result in the FSR exceeding the ratio of 0.7:1. There is no issue between the parties that the clause relevantly imposes a development standard. Moreover, there is no dispute that the standard will not be complied with although there is the divergence of opinion regarding the extent of non-compliance, ranging from 0.89:1 down to 0.77:1 depending on how the FSR is determined. As stated above, an objection pursuant to SEPP 1 has been lodged. 25 At the date of the hearing cl 17(c) of the LEP identified one of the objectives of the plan in relation to housing as follows:- (c) to provide development standards to ensure that the density and landscaped areas of new housing reflect the existing residential development of the locality. new housing should complement and be compatible with the style, orientation and pattern of surrounding buildings, works and landscaped areas, 26 The following day, namely 2 April 2004 the LEP was amended by the gazettal of Amendment No. 11 which relevantly changed the objective by omitting the whole of cl 17 and replacing the provision in cl 17(c) with the following provision in the new cl 17(a):- (a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary [sic] to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping… 27 Prior to the gazettal, it was nevertheless necessary to give appropriate weight to the proposed amendment to the LEP as if the gazettal was imminent. However, I have formed the view that, in the context of the area of Louisa Road and Long Nose Point, the objective in cl 17(c) in respect of density and landscaped areas prior to the amendment of the LEP is harmonious with the objective now contained in cl 17(a). Both require that new housing shall be generally compatible with existing development in the immediate area rather than being inconsistent with it. 28 Accordingly, the amendment does not make any significant difference to the approach to be taken in the determination of the question whether, in the circumstances of this case, strict compliance with the development standard is unreasonable or unnecessary. 29 The SEPP 1 objection prepared by Mr Threlfo puts forward arguments in support of a contention that the proposal is considered to reflect the existing residential development of the locality and to be compatible with the style, orientation and pattern of surrounding buildings. In so far as these arguments relate to elements of scale and presentation I reject the representation that the building will be compatible with the existing pattern and complimentary to existing buildings. For the reasons already explained in regard to the appropriateness of the design, I believe that the reality is to the contrary, namely that notwithstanding the extent of proposed landscaping, the proposed building will be predominant and contrast strongly to its neighbours to the extent that it will be regarded as uncharacteristic of the surrounding articulated forms. 30 The proposed development will contrast with and detract from (rather than complement) the existing range of diversity of built forms, which in the majority of cases comprise a generally consistent vertical pattern. It is because the building will be perceived as too large and bulky for its surroundings that the Court is not prepared to find that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case. 31 The fact that the building is to be erected over two allotments is a factor which contributes to the conclusion that it should be feasible to provide reasonable residential accommodation without exceeding the FSR standard. The applicant relies on a schedule identifying the density of development on other properties in Louisa Road. The current dwelling house at No. 104 has an FSR of 0.6:1. There are, however, many buildings that have an FSR significantly greater than the standard of 0.7:1. Neighbouring properties respectively have FSR of 1.28:1 and 0.84:1. The standard applies to the whole of the area designated as Balmain. That area extends well beyond Louisa Road. I note that about two-thirds of the houses along the north side of Louisa Road have FSR's that exceed 0.7:1. There was no evidence of when and how they were approved. Despite this, the proposal appears more bulky than its neighbours. The reason is probably that the proposal is on an allotment about twice the size of its neighbours, with the result that the proposed building appears to be twice as large as the buildings on either side. 32 The principal objective of the standard is to contain bulk, scale and density. In my opinion, an underlying objective of the 0.7:1 FSR in relation to Louisa Road is not to allow the remaining one-third of allotments to be developed to a larger bulk and to prevent the scale of Louisa Road from increasing further. In my view, after paying due regard to the character of the neighbourhood, these objectives have not been achieved for this site. 33 I am strengthened in the conclusion that the FSR should not be exceeded in this case by the knowledge that, in the context of residential development in Sydney, the FSR of 0.7:1 for detached housing is a very generous one. 34 The objection made pursuant to SEPP 1 is rejected. 35 The consequence is that the development application must be refused on that account alone. Other issues such as compliance with the envelope controls in the DCP do not need to be resolved. As the building will need to be re-designed there is no present utility in pursuing the other peripheral matters. Public Interest 36 The council received 75 letters of objection. Some of these are duplications as the plans were amended on several occasions. Nevertheless, the proposal has attracted significant public interest. A principal concern is in respect of a preference to retain the existing dwelling. Lack of respect to and compatibility with existing development is also an issue. The retention of the Lyon's stained glass window is regarded as an important local historical feature associated with the house. 37 While the heritage significance of the existing house is not high, having regard to the substantial modifications that have taken place, nevertheless I am not prepared to grant approval for its demolition until a suitable acceptable replacement is identified. Conclusion 38 The non-compliance with the development standard for FSR in cl 19(2) of the LEP is fatal to the present application in the circumstance where I am not prepared to support the SEPP 1 objection, for the reasons already explained. Orders 39 The formal orders of the Court are as follows:- (1) Appeal dismissed. (2) Development application for the demolition of the existing two-storey house and the construction of a new three-storey house at 104 and 104a Louisa Road, Birchgrove is determined by refusal of consent. (3) The exhibits may be returned. 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.