Waters v Leichhardt Municipal Council [2006] NSWLEC 26

Land and Environment Court of New South Wales

CITATION : Waters v Leichhardt Municipal Council [2006] NSWLEC 26

APPLICANT Peter W Waters PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 10167 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Final determination after findings and directions of 30 June 2005 - amended plans - setback - bulk and scale - floor space ratio - impact on views - height - streetscape

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000

DATES OF HEARING: 29-30/06/2005 and 02/11/2005

DATE OF JUDGMENT: 01/24/2006

APPLICANT Mr C Leggat, SC Instructed: Mr C Shaw, solicitor Of: Shaw Reynolds LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

24 January 2006

10167 of 2005 Peter W Waters v Leichhardt Municipal Council

JUDGMENT 1 This is a class one appeal No. 10167 of 2005 between Peter W Waters and Leichhardt Municipal Council in regard to the refusal of a two storey house above garage at No. 194 Short Street, Balmain. 2 The findings on this appeal were handed down extempore on 30 June 2005 with directions to the parties for the applicant to provide amended plans and the respondent to notify the plans to the public, consider submissions, provide a report and then resume the hearing. 3 The hearing resumed on 2 November 2005 and evidence and submissions heard on the amended plans in Exhibits F, G and H. 4 The summary of changes to the design is: 1. The basement garage is changed to eliminate non-carparking and non-rain water storage areas. This reduces the floor space ratio to 0.67:1 instead of previous 0.8:1. 2. The garage door is reduced in width to avoid dominance of the street front. 3. The concrete apron and footpath crossing in front of the garage door is reduced in size and the landscaped area increased accordingly to avoid the garage and drive dominating the street front and to soften the built form of the house. 4. The ground and top floor side boundary setbacks have been increased to 2.2 m on the west side and 1.5 m on the east side. These are larger setbacks than the previous design and a larger setback than the existing house on the site on the west side. On the east side it is a larger setback than the previous design and the same setback as the existing house on the site. Comment It should be noted the contemporary design of the existing neighbouring house on the east side has zero side setback on basement and ground floor and 1 m side setback on the top floor. The west side neighbours' contemporary design house has 1.5 m side setback at the ground and first floor and then steps back to 2.8 m from the boundary at the parapet to a roof deck which has a room containing the stairwell set about 5.5 m from the side boundary. The applicant made the point that the proposal now provides much greater side setbacks than either of its neighbours; and provides the setback from the ground up whereas the neighbours only achieve their setbacks on the upper levels. This is relevant to potential view corridors for neighbours behind and uphill of the proposal. 5. On the street elevation there are a number of changes: a) The 1.5 m wide balcony in front of the dining room and above the garage door has been removed at the ground floor level. The elevated terrace in front of the living room has been retained. This has setback the main façade of the house behind the basement and ground level front setbacks of both the neighbouring houses to make the proposal recessive compared to them. b) The top floor instead of cantilevering forward of ground floor is now back at the same setback as the ground floor and this aligns with the front setback of the upper floors of both neighbours. c) The balcony in front of bedroom No. 3 on the upper floor is retained and projects forward of the main façade. But it is only 1.5 m wide and it is inset from the west side wall removing a blade wall in the previous design that would partially reduce sight lines from the neighbours behind the subject property in their views to the water. d) The garage walls and street front walls of the basement level are to be clad in sandstone to create a podium affect reminiscence of the sandstone topography of the site. e) The street façade has been changed in proportions to avoid the horizontal look of the previous design. Instead, the façade is now in two bays, one above the garage door, the other above the living room terrace. This gives a more vertical proportion to the elevation with each bay being about the same width as the bays in the street facades of its two contemporary designed neighbours and also similar proportions to the older terrace houses further west along Short Street. f) The glazing of the windows now has more vertical framing than previously although there are two large picture windows, one to the dining room and one to bedroom No. 1 that have a squarish proportions rather than vertical. 6. The roof has been lowered to be no higher than the ridge of the roof of the existing house on the site. The side parapets have been stepped down to the rear to match the slope of the skillion roof so that at the rear the parapets are about 0.5 m lower than previously. 5 The respondent noted that the ridge of the existing hipped roof of the existing house is about 3½ m long. The new roof runs full width of the proposed house which is about 10 m wide and the high point being at the street façade, the high point is 7 m further away from the rear neighbours. So compared to the existing house it still represents a much larger object in the direction of any view to the water from the neighbours behind and uphill. 6 Mr Fricke of No. 229 Rountree Street, one of the neighbours behind, sought to give evidence on the amended plans. 7 His house is roughly aligned with the west boundary of the subject site and has some small segmented views between it and the bulk of the contemporary duplex on No. 192 Short Street. He said compared to the previous design of the proposal the west wall only moves 200 mm further from the side boundary and the roof edge at the street façade end moves back about 1.5 m. 8 It would improve his view very little he said. It needed the roof to be a pitched roof like the existing house and the ceiling of the bedrooms could be lowered below the 3 m height they were currently shown at. 9 Mr Fricke referred to Leichhardt Development Control Plan 2000 and said to keep a heritage streetscape the roof should be pitched, not flat. He thought the street façade should be more modelled or articulated. He thought it also was too flat. 10 In cross examination Mr Fricke agreed the view to the water from the ground floor of his house had only occurred when the applicant cleared the vegetation in the existing side setback. But he said it compensated for the view he had lost when the three storey duplex was built on No. 192 Short Street. 11 He was asked if the view over the site was blocked when he bought his house. He said in 1974 his only concern was affordability and in any case Mort Bay was a container terminal then, but he said there were few trees at that time. 12 A telephoto lens picture of the existing view from Mr Fricke's ground floor rear balcony is in Exhibit 7. He had drawn on it with 2 lines to represent his expectation of the profile of the proposed new house before the Exhibit H changes. It reveals that with the changes in Exhibit H he will still see the ferry wharf in Mort Bay and the Balmain ridge top with its trees and the City Skyline beyond. 13 During the inspection of his house an observation from his upper storey windows showed that view would be hardly affected at all. The rear deck at Mr Fricke's had only been erected since the applicant had cleared the vegetation in the side setback. The extent of view obtained from the deck depended on where one stood. The view is between Nos. 192 and 194 so from some positions there was no view. 14 The respondent submitted that the control on building envelope was not complied with and the applicant had not gone far enough to preserve existing view sharing by using a pitched roof as suggested in my findings, par 43. 15 The applicant submitted that my findings had already noted that the envelope control, if implemented, would mean hardly any houses in Balmain would comply including the contemporary neighbours of the subject proposal at No. 192 and 196 Short Street. A pitched roof even with a lowered ceiling would be higher at the ridge than the proposal. Also the applicant noted my findings had accepted there was a change in character of the streetscape at this eastern end of Short Street from No. 190 to the corner with Ballast Point Road. This occurred because all the houses in that section of the street had contemporary designs or additions and the contemporary nature of the proposal fitted with them. 16 The applicant said by providing a wider side setback than the existing house on the subject lot and the much larger side setback than No. 192, and by providing the wider setback from the ground upwards, instead of just on the upper levels like Nos. 192 and 196, the applicant had taken all reasonable steps to retain view sharing for Mr Fricke. 17 The applicant also noted par 43 of my findings did not suggest a full pitched roof, it suggested a stepping of or sloping roof edges similar to Nos. 192 and 196. The applicant said the increased setback and the reduced height, the greater front setback, and the removal of the blade wall to the balcony to bedroom No. 3 gave a similar net improvement to the view corridor compared to a pitched roof. 18 Ms Laidlaw had provided a review of the amended plans, but at a stage before the final plans in Exhibit H, because her comments suggested the bedroom No. 3 balcony be set in from the west side wall, and to make the floor plans consistent with the elevations; these suggestions had been included in Exhibit H. 19 The respondent relied on her other comments that included: a) It would be better to have moved the top storey further north so that it stepped back again from the ground floor and was even more recessive in the streetscape. b) By not stepping the top storey back past the ground floor the elevations read as three storeys high, being garage, ground and top floor giving little articulation. c) The removal of the balcony outside the dining room contributes to the flat façade look and reduced articulation. d) The elevation of the street façade shows a heavy shadow line to the head of the garage door that is almost as if the balcony is still there. In fact the garage door is recessed only about 150 mm. The windows on the ground floor and top floors have only about the same recess. But on the drawings are shown with heavy shadow lines. Ms Laidlaw said the elevation is deceptive in the indication of articulation. She thought the elevation looked palatable on the drawing, but the floor plans revealed the result would be more bland. e) Ms Laidlaw thought the view corridor for Mr Fricke would only have slight improvement by the amendments proposed. She thought the top floor should be reduced in overall width on the western side. f) Ms Laidlaw suggested the basement level be clad in sandstone as now shown in Exhibit H. 20 Overall Ms Laidlaw thought the three storey look of the eastern half of the proposal was not sympathetic to the streetscape. 21 That is my conclusion too, but it seems to me much of her concerns and mine could be resolved by reinstating the 1.3 m wide balcony in front of the dining room. It was never criticized in the evidence or in the findings. Keeping the balcony would retain the "2 storey above garage" appearance and the deep recess to the garage door that Ms Laidlaw sees as desirable in articulating the street façade ad avoiding a box-like appearance. 22 The glazed balustrade shown in the earlier plans to the balcony should be retained to contrast with the standstone balustrade of the living room terrace. This will keep the separate proportions of the two bays on the front elevation that fits the character of the neighbouring houses and the terrace houses in Short Street. 23 The bi-folding glass doors to the dining room shown in the earlier plans could also be reinstated to give the glazing the vertical emphasis sought by Ms Laidlaw. The bedroom No. 1 picture window could have a vertical mullion to correspond with the mullions in the fanlight and the lower light of the same window. This would achieve the proportional objectives indicated in Exhibit F Proportional Analysis No. 3 elevation. 24 With those changes I believe the streetscape appearance of the proposal is acceptable and in conformity with my findings. 25 In regard to Mr Fricke's view I bear in mind the floor space ratio now complies with the 0.7:1 maximum allowed. The building envelope control I have dealt with previously. Any two storey building on the subject site built in reasonable compliance with the statute and controls must increase obstruction of the narrow view corridor from Mr Fricke's ground floor that had only recently been available. 26 The amended drawings have achieved something of an improvement to the original view loss. 27 I am concerned that the pergola over the Bedroom No. 3 balcony is supported on a post at the outward corner of the balcony. This post extends down to the ground floor terrace. Unexplained lines on the plan and elevation may indicate infil panels on the sides of the balcony and terrace between the post and the front wall of the house. This would be contrary to the stated intention of the applicant. Also on the roof plan the pergola is shown having no setback from the west wall. It seems to me the pergola, and the balcony could easily be designed in cantilever rather than needing the post. 28 I intend to apply a condition requiring no post, no infil panel above balustrade level on both the balcony and the terrace, and that the pergola be set in 400 mm from the west wall of Bed Room No. 3 to match with the balcony as shown on the Street Elevation Drawing No. 0408/DA08b. 29 The roof is shown at 4 degree pitch. Sheet metal roofs such as that can be pitched as low as 2 degrees and that would enable the ceiling of the Bedrooms at the Street Elevation to be lowered to 2.7 m instead of 3 m and the roof lowered the same amount. 30 The conditions to that effect go as far as reasonable to achieve view sharing and compensate for not stepping or sloping of the roof edges. 31 One further compensation is reasonable, and I intend to impose the council's draft condition that any new vegetation planted in the view corridor should be of a species that does not exceed 3½ m growth height. With that condition and the others foreshadowed above plus the relevant council's conditions in Exhibit 5 as hand annotated, I see no reason sufficient to refuse the proposal. 32 In regard to the dispute on costs, I reserve on that matter to make findings at another time for concurrence of the Chief Judge. 33 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to the demolition of the existing house and the erection of a new house as shown in drawings Nos. 0408/DA03a, /DA04b, /DA05b, /DA06c, /DA07b, /DA08b, /DA09b, /DA10b, /DA11b, /DA12b, /DA13b, /DA14b drawn by Kennedy Associate Architects and landscape plan 0510DAL01 Issue C by Turf Design Studio, all as further amended by and built in accordance with the conditions in Annexure 'A' hereto. 3. That the exhibits be returned to the parties except Exhibits 1, 2, 5, 7, 8, 9, 14, 15, 16, F, G, H, J and K.