Land and Environment Court of New South Wales CITATION : Healey v Sydney City Council [2006] NSWLEC 274 APPLICANT Adrian Jon Healey PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11275 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and additions to existing dwelling house, amenity impacts, conservation area South Sydney Local Environmental Plan 1998 LEGISLATION CITED: South Sydney Development Control Plan 1997 South Sydney (Heritage Conservation) Development Control Plan 1998 DATES OF HEARING: 07/04/2006 DATE OF JUDGMENT: 05/24/2006 APPLICANT Mr O'Gorman Hughes, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 25 May 2006 11275 of 2005 Adrian Jon Healey v Sydney City Council JUDGMENT Introduction 1 This appeal relates to development application No. D/2005/61 which is for alterations and additions to an existing single storey terrace house and garage at 82 Marriott Street, Redfern. The alterations to the house include the creation of a room in the roof of the front part of the dwelling and the erection of a first floor skillion roofed extension ("the first floor extension") above the existing rear skillion roofed wing which is to be extended. 2 Located on the west side of the street and described as Lot A DP 14131 the site has an area of 168 sq m. It has rear vehicular access off Blackmore Lane as well as a narrow pedestrian access way along the northern boundary of the site between Marriott Street and this Lane. The surrounding locality is characterised by single storey terrace houses. 3 The application has a long and somewhat complicated history involving allegedly unauthorised works; penalty infringement notices; and associated orders although no such orders are presently outstanding. These matters have no bearing on the determination of the appeal. Statutory provisions 4 The site is situated in the Residential 2(b) zone under South Sydney Local Environmental Plan 1998 ("the LEP") in which zone the proposed alterations and additions are permissible with development consent. It is also located within the Baptist Street Conservation Area ("the conservation area") under the LEP. 5 Also applicable are the: South Sydney Development Control Plan 1997 ("the DCP") which relevantly specifies a maximum floor space ratio of 1:1 and a maximum height of 6 m. Having a floor space ratio of 0.86:1 and a height of about 6 m the proposal complies with these requirements. South Sydney (Heritage Conservation) Development Control Plan 1998 ("the conservation DCP"). Advertising, evidence and issues 6 The application was advertised and three submissions were received objecting to the development. Matters of concern raised in those submissions include: privacy and overshadowing impacts; visual impacts and loss of views and potential drainage problems. 7 Expert town planning evidence was provided on behalf of the respondent by Mr S Carr and on behalf of the applicant by Mr G Edgar. Expert heritage evidence was provided on behalf of the applicant by Mr G Brooks and on behalf of the respondent by Ms C Kemp. 8 The statement of issues details a range of concerns including built form and heritage considerations and neighbour amenity impacts, these being the emergent issues associated with the proposal. Following amendments to the design of the rear garage this was no longer of any concern. 9 The Court's task in this case, and indeed that of the council, was not assisted by the very poor quality of the building plans and the shadow diagrams. Amenity impacts on neighbours 10 Whilst the overshadowing provisions in the DCP may not require the protection of side windows in circumstances such as exist here, there is no doubt that the first floor extension will result in some additional winter overshadowing of north facing windows at No. 86 together with a resulting loss of daylight for both No. 86 and No. 84. In addition, whilst the shadow diagrams are of questionable accuracy it is likely that the property at No. 88 will also be affected at the winter solstice. The affected neighbours were particularly concerned about these impacts. Whilst Mr Edgar may be correct in his assertion that the rear yards of these properties will not be significantly affected by the extension at the winter solstice there are likely to be impacts at other times of the year. Although the experts agreed that these impacts would be relatively minor they would be avoided by a smaller extension. 11 The first floor extension will be able to be seen from neighbouring properties in Marriott Street and Zamia Street and its size and appearance will affect the outlook enjoyed by the occupants of these properties, a matter of concern to the affected residents. Mr Edgar was of the opinion that these impacts are not significant. Mr Carr disagreed, explaining that the visual bulk of the building that results from the non-compliance with the DCP would adversely affect the amenity of the neighbours to the south and north of the site. The concerns of Mr Carr and the neighbours are understandable and again a smaller extension would avoid these impacts. 12 The three north facing windows in the front floor extension will provide opportunities to overlook the rear yards of a number of properties in Zamia Street. Notwithstanding that these windows are associated with a bedroom I can understand the concerns expressed in the residents' objections. The applicant now proposes that these windows be fitted with obscure glazing to mitigate these overlooking opportunities. Whilst I accept that obscure glazing will mitigate this impact, this technique represents a poor design solution. 13 By themselves these amenity impacts are not such as to be determinative of the application, taking into account the density and character of development in this locality generally. Mr Carr is nevertheless correct when he says that the proposal will not enhance the amenity of the neighbours as required by the DCP. If the applicant decides to lodge a further application these matters should be given careful consideration. The conservation issue 14 The South Sydney Heritage Study (1992-93) describes the significance of the conservation area as follows: o Historic significance: Victorian/Federation residential subdivision containing some prominent Victorian and Federation buildings; o Representative: of Victorian/Federation residential subdivision with various development overlays; o Associative: with the Baptist Nursery which occupied a large portion of the site and links to prominent architects; o Social: as a local residential focus and a continued community focus since the 1950s; o Scientific: archaeological potential predominantly on redeveloped sites of former industries including the Baptist nursery. 15 The site is also included within the larger Redfern Urban Conservation Area as listed by the National trust (NSW). 16 The City of Sydney Heritage Inventory in the South Sydney Conservation Areas Study 2003 ("the conservation areas study") includes the following statement of significance for the conservation area: The Baptist Street Conservation Area has historic significance as an 1890 residential subdivision of an early industrial precinct (Baptist's Nursery c. 1830). The area has aesthetic significance for its highly consistent rows of terrace houses and shops from the late Victorian and early Federation period enhanced by mature avenue plantings and its fine religious and institutional buildings. The area is predominantly intact. 17 The conservation areas study includes the subject dwelling house as a contributory building within a contributory row of intact terraces. It also refers to the terrace row as contributory, within a highly intact, contributory streetscape. It includes recommended management guidelines for the conservation area including: - Retain 1 storey worker's cottages, - Retain 1-2 storey Victorian/Federation terraces, - Retain scale, - Retain form, retain finishes and details, - Reinstate verandas, front fences and lost detail, - Additions to rear not to exceed ridge height and retain original roof form, - Discourage front dormers. 18 In addition to requiring that the proposed works cannot be carried out without development consent, clls 23A, 23B and 24 of the LEP require an assessment of the impact of the development on the building itself and on the conservation area. Also required is an assessment of the pitch and form of the roof, the styles, size, proportion and position of windows and doors and the colour, texture, styles, size and finish of materials. 19 In s 1.2, Part F of the DCP relevantly provides design and performance criteria for single dwelling houses and in terms of building form and appearance: The building envelope (height and bulk) matches that prevailing in the street and the predominant building form at the rear. 20 In this context the DCP also notes that it is: … important to reduce bulk towards the rear. Utilise effectively the bulk nearest to street. In streets where building height varies, two storey conversion may be most appropriate, provided conservation objectives are not compromised. 21 Section 1.4 of notes that alterations and additions will be permitted provided that uniformity and coherence of the streetscape is maintained. Extensions at the rear of existing buildings are to be limited in size to ensure that the dwelling is not overdeveloped particularly in conservation areas. In particular: The type and extent of alterations and additions that may be permitted will depend on ( relevantly ): Whether the uniformity at the rear of the dwellings is to be affected. 22 Whilst the DCP recognises that each application needs to be determined on its merits in the light of its environmental context: The main objective is to utilise the existing roof envelope of each particular dwelling. 23 Section 1.4.1 provides for the use of the main roof space of existing dwellings and the installation of attic windows, provided that any front dormer window maintains the uniformity and coherence of the streetscape. Any rear dormer window needs to maintain the architectural integrity of the building and the neighbourhood. The associated objectives require the utilisation of the main roof space before extensions at the rear are permitted and a requirement that the extension be sympathetic by maintaining the essential fabric of existing buildings. Importantly: At the rear, alterations shall maintain the integrity of the main roof and attic conversions shall not extend past the pitching point of the roof at the rear. 24 Section 1.4.1 includes diagrams depicting a traditional front dormer window and showing how a rear skillion roof dormer should be set within the roof plane of an existing building. The rear skillion roof dormer as shown in the relevant diagram does not extend past the pitching point of the roof at the rear whereas the first floor extension does. 25 Sections 1.4.2, 1.4.3 and 1.4.4 provide a number of options for where the creation of an attic within an existing roof space does not provide enough floor area: o Conversion to a two storey dwelling o Rear ridge additions o Detached rear additions 26 In this context, two questions arise: would an attic conversion provide "enough floor area" and if not does the proposed extension comprise one of these three available alternatives? 27 Clearly what is proposed here is not a detached rear addition as anticipated by s 1.4.4. Whilst it does comprise the conversion of the rear part of the dwelling to two storeys this is not the form of conversion anticipated by s 1.4.2. The applicable performance criteria here require that two-storey additions should faithfully reproduce the original form and style of the existing single storey dwelling and that is not achieved here. More particularly the associated diagram which depicts how a second storey addition would occur, shows how a building very similar to the existing building could be extended to two storeys at the front, resulting in a two-storey presentation to the street. In the context of the conservation area there is no doubt in my mind that this two storey form of extension would be inappropriate especially taking into account the provisions of the conservation DCP to which I will refer shortly. 28 This leaves the rear ridge additions option that provides for the extension of the building to the rear from the ridge line. Here the DCP points to the need to reduce bulk and scale such that additions will not be out of character with the area. The associated objectives seek to limit the size of such additions taking account the constraints imposed by the existing form of the building which should not significantly altered. The applicable performance criteria require that such extensions should match the predominant rear alignment of adjacent buildings and not be higher than the existing ridge line. 29 Section 4.0 of the conservation DCP deals with alterations and additions to heritage buildings, where such buildings comprise both heritage items and buildings within conservation areas. In s 4.1.1 it is noted that alterations and additions to heritage buildings will generally be acceptable provided they respect the heritage values of the existing building and the character of the area. In this context the retention of as much as possible of the original fabric that contributes to the character of the conservation area will be required. Where a heritage building is not an individually listed heritage item: It is the parts of the building that are visible from the street that are of most importance to the conservation area, i.e. the building's streetscape appearance. Alterations to buildings should therefore be confined to the rear or designed in such a way that they will not change the streetscape appearance of the building 30 In section 4.1.2 different types of additions are considered including: - Lean to and wing additions, which according to the associated diagrams are single storey at ground level - Roof conversions, which involve rooms in the roof with dormer or roof windows, where such windows are not visible from the street. - Additional storey additions involve the construction of a second floor on a single storey house although such extensions are only appropriate in instances where the building is not a listed heritage item and is surrounded by two-storey buildings. 31 In this context I agree with Ms Kemp that the first floor extension does not fit into any of these types of additions and its form is not one anticipated by the conservation DCP. Whilst other forms of extensions to buildings cannot be totally excluded the fact that these three types of extensions are specifically identified, dealt with in considerable detail and encouraged provides a strong indication that other forms are likely to be much less acceptable. 32 The general principles, performance criteria and controls in s 4.1.3 need also to be applied. In streetscapes where development is of a consistent height, upper floor additions are generally inappropriate. Moreover where a building forms part of an intact terrace group the addition of another storey would not be appropriate. In this regard however it is to be noted that the emphasis is on protecting streetscapes. There is room for greater architectural expression in the design of pavilion additions or rear additions that are not visible from the street or other public areas. Contemporary designs can be acceptable but such designs need to respect the design of the existing building. Importantly however it is noted that: Where the rear of a terrace is intact, this should be retained where possible, particularly on heritage items. 33 The performance criteria provide that: · Additions to heritage buildings should not overscale the item by dominating or competing with the height and size of the existing building. · The form and character of additions should complement the design of the existing building. 34 Being a contributory building within a highly intact streetscape, the extent to which the proposed first floor rear extension can be seen from the public domain is an important consideration, especially if it does not meet the various requirements of the planning controls particularly those dealing with form and style. It is however beyond dispute that the proposed extension at the rear will only seen from the street and the rear lane within relatively narrow view corridors. Hence, (leaving aside the proposed front dormer window), the extension will have few if any adverse consequences for the conservation area in terms of presentation to the public domain. Indeed any such consequences would, in my view, be mitigated by the proposed conservation measures proposed for the front elevation of the building including the veranda roof, windows and the front fence as encouraged by the conservation study. 35 Despite this, weight must still be given to the appearance of the first floor extension when viewed from neighbouring properties, although, in the conservation context, this cannot be given the same weight as that given when dealing with visibility from the public domain. The development control plans nevertheless provide for the retention of the rear of intact terraces. The extension will be able to be seen from a number of neighbouring properties and because it is inappropriate in terms of the conservation area requirements and other provisions of the development control plans, this is a negative consideration. 36 In this context and in the context of s 1.4 of the DCP, the question arises as to whether extensions to the house can be said to be required to provide a reasonable level of accommodation for a family and if so whether this is a sufficient reason to set aside the requirements of the development control plans. Similarly, would the strict application of these requirements result in a situation where for example a family with the means to maintain an old building like this one may not want to live in it unless it provides a reasonable level of accommodation. 37 The gross floor area of the existing house with the proposed extension will be about 144 sq m including the proposed extension which is to be used as a bedroom which is to have an area of about 22 sq m (3.2 m x 7 m). Without this new bedroom the house will have an area of about 122 sq m and will comprise two bedrooms (one in an attic), within the existing roof space, a bathroom and a combined kitchen/dining/living room (12 m x 4.3 m) that opens onto a courtyard of about 32 sq m. The existing kitchen/dining/living room has already been extended and with this proposal it will be extended further. 38 Together the extensions to the kitchen/dining/living room represent a significant enlargement of the house although it is to be recognised that even including the proposed bedroom extension, the building will have a floor space ratio below the maximum permitted by the DCP. 39 It was submitted on behalf of the applicant that the additional floor space was important. However despite it being below the maximum floor space ratio the two-bedroom house will nevertheless be quite liveable and I do not accept that this consideration should attract greater weight than the requirements of the development control plans that in essence require the protection of existing predominant building forms at the rear. I have reached this conclusion notwithstanding that in certain circumstances the controls anticipate changes to the rear of buildings such as this. 40 Whilst there was no dispute between two town planners that the proposal will improve the internal amenity of the house, Mr Carr maintained that this does not justify the impacts of the proposal on the rear form of the terrace group. Conversely Mr Edgar did not agree that the impacts are significant. 41 In the joint the heritage report Ms Kemp explained that the first floor a rear addition does not comply with the applicable planning controls, would adversely impact on the terrace row and would provide an unfortunate precedent for bulky rear first floor additions to what are single storey terraces. Mr Brooks disagreed explaining that by utilising side setbacks the addition would be relatively discreet when viewed from the public realm, this being the critical aspect for the consideration of likely impact on the conservation area. 42 Whilst there are a number of examples of first floor additions in the locality, this terrace row is largely intact and in my opinion this leads to my conclusion that determinative weight should be given to the development control plans that require the retention of the rear of intact terraces so as to ensure continued uniformity. 43 In this context the LEP directs attention to the form of the roof and, in relation to height and bulk the development control plan requires the reduction of bulk and the matching of the predominant building form at the rear. Consistent with this the utilisation of existing roof envelopes or main roof space is encouraged as is the use of rear skillion roof dormers set within the existing roof plane so as to maintain the integrity of existing building form. 44 Having considered the first floor extension in the context of the applicable planning controls it is clear to me that it has a form that is inconsistent with these controls. It also extends building bulk towards the rear contrary to these controls. Whilst it will be little seen from the public domain it would nevertheless be seen from neighbouring properties. Taking into account the intactness of the terrace row and the clear intention of the development control plans I have been persuaded by the evidence brought on behalf of the respondent that the proposal would be unacceptable, notwithstanding the benefits that the additional floor space would provide for the applicant. 45 I have therefore decided that the appeal should be dismissed. Having reached this conclusion it is unnecessary for me to determine whether the provision of a dormer window in the front of the building would be inappropriate. I would nevertheless comment that whilst a different design may not need such a window if a rear skillion dormer were to be utilised, the introduction of a dormer into the streetscape given the existence nearby of others and the fact that the existing building is not a heritage item this may not have been critical to the conservation area. 46 There was no significant dispute in relation to the alterations to the garage or the ground floor extensions and I would have had no problem in approving these, however, I cannot do this given my decision to refuse the major component of the application. Orders 47 The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. D/2005/61 for alterations and additions to the existing single storey terrace house at 82 Marriott Street, Redfern, is determined by refusal. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court rjs 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.