Land and Environment Court of New South Wales CITATION : Cipriano v Leichhardt C [2006] NSWLEC 90 APPLICANT Norman & Marshia Cipriano PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 10582 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and Additions to a heritage item - construction of a two-storey dwelling - character - layout and design - setbacks. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 DATES OF HEARING: 6/02/2006 and 7/02/2006 EX TEMPORE JUDGMENT DATE : 02/07/2006 APPLICANT Ms M-L Taylor, solicitor of Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr G. Green, solicitor of Pike Pke & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 7 February 2006 10582 of 2005 Norman & Marshia Cipriano v Leichhardt Council This decision was given extemporaneously on site. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to development application No D/2004/689 for the Torrens Title subdivision of Nos 15-17 Elswick Street, Leichhardt into two lots plus alterations and additions to the existing two storey dwelling on the resulting lot 1 and the erection of a new two storey dwelling house on the resulting lot 2. 2 The site is situated on the south eastern corner of Elswick and Jarrett Street and comprises lot 48 in DP612. It has an area of 290.6 sq m with a frontage to Elswick Street of 9.145 m and a frontage to Jarrett Street of 30.48 m. 3 The existing house on the site is a Victorian building formerly a shop and residence and is now an office and residence. It is listed under Leichhardt Local Environmental Plan 2000 ("the LEP") as a heritage item of local significance. 4 The locality in which the site is situated predominantly comprises low scale residential land uses mainly detached or semi-detached dwellings of the Victorian, Federation and inter war periods. Opposite the site across Elswick Street is a modern two storey townhouse development. Opposite the site in Jarrett Street is a large scale commercial development that, together with other similar scale commercial developments, front Parramatta Road. 5 The site is situated in the Residential Zone under the LEP. In the zone, subdivision and residential development including alterations and additions to heritage items require development consent. Relevant development standards in cl 19 of the LEP impose a minimum lot size of 200 sq m and a maximum floor space ratio ("FSR") of 0.5:1. 6 The proposal fails to comply with both of these standards and objections under State Environmental Planning Policy No 1 ("SEPP 1"), Development Standards have been provided. Leichhardt Development Control Plan 2000 ("the DCP") is also applicable. 7 The application was advertised and one objection was received from the neighbouring property owner, Miss T Wynd of No. 19 Elswick Street. Miss Wynd provided the Court with a comprehensive report detailing her concerns in relation to the proposal. Her concerns are in essence: + Whether the construction of the new dwelling would adversely affect the structural integrity of her dwelling with consequential impacts including cracking of walls and the like. + Whether the absence of a separation between the new dwelling and her dwelling would result in problems associated with the maintenance of both buildings. The separation is also required to maintain the free standing appearance of her dwelling. + The use of a sump pit and relief drains and the consequential adverse affects on her property associated with damp soils. + Whether the proposal meets the requirements of the council's DCP in relation to desired future character, scale of dwellings, building height and streetscape. + Aural and visual privacy impacts mainly resulting from the use of first floor terraces. + The inappropriate use of building materials, particularly metal cladding. 8 A council officer's report was prepared for council's building and development committee meeting on 8 February 2005. That report recommended that conditional development consent be granted. 9 The report took into account advice received from council's heritage advisor that the alterations to the heritage item maintain it's historical character and that the scale and form of the new dwelling is appropriate in terms of the prevailing streetscape character. In this context the requirements of the LEP and DCP are met. The report also considered the non-compliances with the site area and floor space ratio development standards and concluded that the SEPP 1 objections should be supported. 10 Also considered were the requirements of the DCP in terms of desired future character for this locality, site layout and design, building form and setbacks, again concluding that the proposal is satisfactory. The concerns expressed by Ms Wynd in her objection to the council were also considered and found not to be of determinative concern. 11 Subsequent supplementary reports reached similar conclusions although concerns in relation to structural engineering aspects associated with No. 19 Elswick Street, having become apparent, resulted in a recommendation for the imposition of a deferred commencement consent pending resolution of such concerns. 12 Notwithstanding, the recommendation that conditional development consent be granted, the council resolved to refuse the application for reasons relating to the non compliance with the development standards, failure to meet the requirements of the LEP and the DCP in relation to heritage conservation and insufficient side setback and overdevelopment of the site. 13 At the hearing, expert evidence was provided by the two Court-appointed experts, Mr R Staas a heritage architect, and Mr J Lovell a town planner. The Court was also assisted by two engineers, Mr Boudib and Mr M Jeffrey who prepared a joint statement following further investigations of the footings and other structural aspects of the house at No. 19 Elswick Street. They subsequently made a number of recommendations that if complied with would resolve any such concerns. These recommendations have now been incorporated into conditions which have now been agreed to. 14 I accept the advice of these engineers and am satisfied that with the incorporation of these conditions into the consent, the issue involving the structural integrity of No. 19 Elswick Street is resolved. I am also satisfied that with the conditions relating to dilapidation reports, and agree with Mr Jeffrey that the post construction dilapidation report should not be carried out one year after completion and should instead be done earlier. 15 The applicant also asked the Court to take into consideration materials provided with the development application including a heritage impact assessment prepared by Mr B Edgar, a heritage architect. That report concluded that the proposal was in keeping with the heritage character of the neighbourhood and that the new dwelling would have minimal impacts. Mr Edgar pointed out that the existing street numbering indicates that the site of the proposed new dwelling was originally intended for such. Moreover the size of the subject lot was such that it had been effectively divided into two narrower lots and as such the proposal reflects earlier subdivision patterns that were typical of the estate. 16 In his report Mr Staas acknowledged and agreed with the conclusions reached by Mr Edgar. He deals with the issues of subdivision pattern, alterations and additions to the heritage item and the new dwelling in the context of the requirements of the LEP and the DCP concluding that the proposal is entirely satisfactory. 17 In relation to the proposed subdivision Mr Staas explained that what is proposed is consistent with almost all development in the estate representing the scale of half of an original allotment. In addition the blank northern wall of the existing building on the site, provides an indication that a second separate terrace house could be erected on the vacant land. This pattern of development is demonstrated by the existing development of a similar corner site at No. 2-4 Excelsior Street. In this same context he also explained that the vacant land that is to become lot 2 is not part of the curtilage of the existing building. 18 In dealing with the heritage and conservation objectives of the LEP Mr Staas noted that this encourages the design of buildings which are compatible with the character, form and scale so as to protect the area's heritage and meet good urban design principles. In this context he explained that the new building would comprise an appropriately scaled infill development and that the absence of any side setbacks would be consistent with the established character of the area and indeed the desired future character of it. 19 In relation to the alterations and additions to the existing building, it was his opinion that they are entirely compatible with the form, scale and character of the building as it presently exists and will not have any adverse impact on the identified social, architectural or streetscape significance of the item. 20 Whilst Mr Lovell had few concerns in relation to the urban design aspects of the proposal, he believed that a break of about 200 mm between the proposed new house and the existing house at No. 19 Elswick Street, would assist in providing a rhythm to the street and that this would be responsive to the concerns of Miss Wynd. 21 In this regard I do not agree with Mr Lovell or Miss Wynd and in this context would firstly conclude that I agree that in the heritage context, the space between the existing building on lot 1 and No 19 is an entirely appropriate place in the context of the streetscape and the locality and otherwise to provide an infill building. 22 To provide the 700 mm separation as suggested by Miss Wynd would, I have decided, impose an unreasonable design constraint on the dwelling and would also be a waste in terms of use of land even though it would probably achieve the objective of providing a free standing appearance for the house at No. 19. To provide a 200 mm separation can be criticised for the same reasons and in terms of providing the sought free standing appearance, would be ineffective. I should note that situations where individual buildings are effectively attached, are not uncommon in the locality and I agree with Mr Staas that in this instance at least the idea of a free standing appearance is not an imperative. I also agree that even without a separation the three buildings, that is Nos. 15, 17 and 19, each with a different yet sympathetic character will maintain an appropriate rhythm in the streetscape. 23 The front dormer arrangement proposed for the new house was the subject of some criticism in terms of its size and the inclusion of a small balcony. Whilst Mr Staas agreed that its bulk could have been reduced by the provision of a small hip to its roof he believed that it was not inappropriate in the streetscape and in a sense was not dissimilar to the balcony arrangement of the relatively modern townhouses opposite. I agree with Mr Staas for the reasons he has given and accept that the dormer arrangement, as proposed, would have no significant impact and see no reason why it needs to be changed. 24 Clause 19 of the LEP specifies a minimum allotment size of 200 sq m. Proposed lot 1 is to have an area of 149.2 sq m and proposed lot 2 an area of 131.6 sq m, both lots exhibiting a significant non-compliance with the development standard. 25 Mr Lovell accepted that the proposed subdivision appears quite appropriate on the basis that it is consistent with the predominant pattern of allotments in the vicinity. He accepted that the site presents a logical opportunity for infill development and noted that the existing subdivision pattern predates the development standard. He considered the underlying objectives of the standard and answered the question of why should the development not comply by concluding that the underlying objectives of the control are met and that the SEPP objection should thus be upheld. 26 Accepting as I do the opinion of Mr Lovell and recognising also that the lot size standard is generally not met locally, I am satisfied that the SEPP 1 objection should be upheld. 27 The proposed dwelling on lot 1 has a FSR of 1.14:1 and the proposed dwelling on lot 2 has a FSR of 0.6:1 with the entire development having a FSR of 0.88:1 compared with the development standard of 0.5:1. 28 Mr Lovell had few concerns in relation to the exceedence of the floor space ratio for the new house given that the exceedence would not be apparent particularly in terms of matters of bulk and scale. In this regard I agree with him and see no reason why the SEPP 1 objection should not be upheld. 29 However, Mr Lovell had greater concerns with the non compliance associated with the extension to the existing house which extension will be readily apparent when viewed from Jarrett Street. In this regard he noted that there is some scope to reduce the size of the rear extension. This involves reducing the length of the building at the first floor level by about 2 m. Despite this, and on balance, he considered the floor area of the extended building to be acceptable, being satisfied that the objectives of the control and the character of the locality are satisfactorily resolved. 30 Mr Staas did not accept that there was any need to reduce the length of the building as suggested by Mr Lovell. Instead he was satisfied that the extension would not dominate the heritage item and that it's relationship was in a heritage sense, appropriate. 31 Having considered this aspect of the matter during the inspection in Jarrett Street, and taking into account the bulk and scale and the relationship to its own site, and to the adjoining building to the rear, I agree with Mr Staas. I thus agree that the SEPP 1 objection in relation to FSR should be upheld. 32 In relation to carparking I note that there is a vehicular cross-over from Elswick Street onto proposed lot 2 that facilitates the provision of an off street parking space. According to Mr Lovell the DCP specifies a maximum of two off street parking spaces and there being no off street parking proposed by the development, there is no non-compliance. He concluded that it might be possible with a redesign to provide an off street parking space to service the existing house and office. However he did not consider this to be necessary on the basis that the DCP does not require any off street parking. He noted that the majority of properties in the locality are similarly not serviced by any off street parking. 33 In agreeing with Mr Lovell I also note that the applicant has agreed to a condition requiring the removal of the existing vehicular cross-over from Elswick Street and that as a consequence additional on street parking is facilitated. 34 Other concerns in relation to the proposal, such as visual and aural privacy, were dealt with in the council officer's report and I agree with the conclusions reached therein. 35 Finally, despite the significant non-compliances with the development standards, I have not been persuaded that this proposed development would generate any incremental detrimental impacts that would indicate that the application should be refused. I have concluded that the new dwelling house, and the alterations and additions to the existing building, would be appropriate in the streetscape and in terms of the applicable heritage requirements. I have therefore decided that, in the circumstances, conditional development consent should be granted. As for condition 3 in the conditions in exhibit 9, that condition is deleted, consistent with the reasons I have given in my judgment. 36 It is therefore the decision of the Court that: 1 The appeal is upheld; 2 Development application No D/2004/689 for the Torrens Title subdivision of Nos 15-17 Elsewick St. Leichhardt into two lots plus alterations and additions to the existing two storey dwelling and office on the resulting lot 1 and the erection of a new two-level dwelling house on the resulting lot 2 is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3 Exhibits A, B, C, D and 9 are retained. ___________________ T A Bly Commissioner of the Court ljr 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.