Land and Environment Court of New South Wales CITATION : Eckert, Michael P v Ashfield Municipal Council [2007] NSWLEC 151 APPLICANT: PARTIES : Michael Patrick Eckert RESPONDENT: Ashfield Municipal Council FILE NUMBER(S) : 10981 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Additions to dwelling house: Character of the proposed development Ashfield Local Environmental Plan 1985, (ALEP) LEGISLATION CITED: Ashfield Development Control Plan No 1 - Dwellings in Residential Zones, (DCP1) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 17 January 2007 DATE OF JUDGMENT: 26 March 2007 Mr M P Eckert, litigant in person RESPONDENT: LEGAL REPRESENTATIVES: Mr S H Patterson, solicitor SOLICITORS: Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 26 March 2007 10981 of 2006 - Michael Patrick Eckert v Ashfield Municipal Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ashfield Municipal Council (the council) to refuse a development application to erect a new addition to a dwelling house at Lot 1, DP 194118, being No 40 Joseph Street, Ashfield. 2 I visited the land in company with the parties on the morning of the hearing and directions were given. Amended plans were prepared that met the requirements of both parties. 3 I have concluded that the application is satisfactory in its context and when considered under s 79C of the Environmental Planning and Assessment Act 1979 and consent is granted. The land 4 The land is situated on the eastern side of Joseph Street, to the north of a public pathway. The land has a frontage to Joseph Street of 15.075m, to the pathway of 29.995m, a rear eastern boundary of 15.150m and a northern boundary abutting No 38 Joseph Street of 30.05m and an area of some 453m2. 5 The land is not located in a heritage conservation area, however there is a heritage item at No 54 Joseph Street, Ashfield, to the south of the land. Ashfield shopping centre is located about 320 metres to the north. Relevant planning controls Ashfield Local Environmental Plan 1985, (ALEP) 6 Under the provisions of the ALEP the land is zoned 2(a) Residential and the proposal is permissible with consent. There are no development standards that would apply to the erection of dwelling houses. 7 The aims and objectives of the ALEP under Clause 2 are: (a) to promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment; (b) to retain and enhance the identity of Ashfield area derived from its role as an early residential suburb with local service industries and retail centres; and containing the first garden suburb of Haberfield, (now listed as part of the National Estate.) Ashfield Development Control Plan No 1 - Dwellings in Residential Zones, (DCP1) 8 The proposed development is subject to the requirements of DCP1 and relevant are: 1.4(ii) Objectives of DCP1 for new development are to have a high standard of urban design; and Part 3.4.1(iv) Building appearance and neighbourhood character. 9 The proposal should not be in strong contrast with the positive and characteristic features of nearby buildings. The proposal and its history 10 Development application No 2005/328.1 for alterations and additions to a single-storey dwelling comprising demolition of a bedroom, bathroom, toilet, laundry and kitchen and the erection of a two-storey addition to the rear of the existing single-storey building, comprising kitchen, family room, bathroom, laundry, bedroom, study, wardrobe and en-suite at the land. The development application was lodged with the respondent council on 23 December 2005. 11 The single pitched skillion roof is separate from the existing roof over the front part of the existing building. The roof over the addition slopes down towards the front and there is proposed a box gutter at the base of the new wall where it abuts the existing roof. Notification 12 The application was notified from 9 January 2006 until 24 January 2006 to nearby owners and occupants and the council received one objection from the owner of 1 Pyrmont Street, Ashfield, in relation to loss of sunlight to living room windows on the northern side of the objector's house. 13 On 1 March 2006, the council wrote to the applicant advising him that the additions need to be redesigned, as there were issues with the proposed addition fitting into the neighbourhood. 14 On 3 July 2006 the applicant attended a meeting at the council's offices with council's heritage advisor, Ms H Wilson and Mr W Daskalopoulos the council's building surveyor. The applicant was advised at that time that the proposed design was not appropriate for the neighbourhood. The council's decision 15 By notice dated on about 21 November 2006, the council refused the application for the following reasons: 1. The development does not meet the objectives of Clause 2 of Ashfield Local Environmental Plan, as the proposed addition does not promote the orderly development of the local government area of Ashfield in a manner consistent with the need to protect the built environment and retain and enhance the identity of Ashfield. 2. The development does not comply with the objectives in Part 1.4(ii) of Ashfield Development Control Plan No 1 as the addition does not achieve a high standard of urban design and does not contribute to the established character and residential amenity of Ashfield's housing neighbourhood. 3. The building design and roof form is visible from Joseph Street, Pyrmont Street and the public pathway to the south. The development is in strong contrast with the positive and characteristic features of neighbouring properties and the streetscape. The development therefore does not comply with the objectives of Part 3.4.1(iv) of Ashfield DCP No 1. The hearing 16 The appeal was filed on 17 October 2006. 17 At the hearing the court heard evidence on behalf of the respondent council from: · Mr J Hall, owner of No 1 Pyrmont Street, Ashfield; and · Mr M Mercanuto, Manager Building Services, Ashfield Council. 18 On behalf of the applicant Mr J Mitchell, architect, gave evidence. The issues 19 On 15 November 2006 the council had filed a statement of issues: 1. The proposed development should not be approved as it does not comply with the general aims set out in clause 2 of the Ashfield Local Environmental Plan 1985 ("ALEP 1985"). Particulars a. The proposed development is not orderly development in that it is not in keeping with surrounding buildings; and b. The proposed development is not consistent with the need to protect the built environment and retain and enhance the identity of Ashfield. Development Control Plan No 1 - Dwellings in Residential Zones 2. The proposed development should not be approved as it is inconsistent with objectives contained in Part 1.4 of Development Control Plan No - Dwellings in Residential Zones ('DCP 1'). Particulars a. The proposed development is inconsistent with objective 2 of DCP 1 as the two storey reverse skillion roof addition to the rear of the existing single storey house is not a development of high urban design and does not contribute to the established character and residential amenity of Ashfield's housing neighbourhood. 3. The proposed development should not be approved as it is inconsistent with Part 3.4.1(iv) of DCP 1. Particulars a. The proposed two-storey reverse skillion roof addition at the rear of the single storey house is inconsistent with the positive and characteristic features of the neighbouring properties and the streetscape. Precedent 4. The proposed development should not be approved, as it will create a harmful precedent in the locality. Public Interest 5. The proposed development should not be approved, as it is not in the public intent. 20 The character of the proposed development in its context was the salient issue. Amended plans 21 During the course of the hearing the applicant agreed to amend the plans such that a hipped roof would cover the rear additions and the wall height would be reduced. The pitch of the roof would match the pitch of the existing dwelling of around 30 degrees slope and the roof would be clad in Colorbond corrugated steel sheeting of mid-grey colour. 22 This amendment was reviewed by Mr Hall, the neighbour, who was content that it would reduce the extent of shading likely to impact on his dwelling and the council representative agreed that such a proposal would be more in keeping with the area. 23 The amended architectural drawings and shadow diagrams were advertised in accordance with the council's policy and the matter reviewed by the Court in that light. The evidence and findings Character 24 With the amendments proposed by the applicant during the hearing, the party's were agreed that the issue of character had been successfully resolved. I agree and I am satisfied that the amended proposal may be granted consent subject to conditions. 25 For the above reasons, the appeal is upheld. Conditions 26 The conditions are those in Exhibit 5 as amended to reflect the agreement reached on site and the orders of the Court issued 17 January 2007. Orders 27 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 2005/328 lodged with the respondent council on 23 December 2005 for alterations and additions to a single dwelling house, at Lot 1, DP 194118, being No 40 Joseph Street, Ashfield, is approved subject to Conditions A1 to I2 in Annexure A. 3. The exhibits except for Exhibits C, D, 1 and 5 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.