Land and Environment Court of New South Wales CITATION : Glen McCormack v Marrickville Council [2006] NSWLEC 143 APPLICANT Glen McCormack PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 10478 of 2005 CORAM: Hoffman C KEY ISSUES: Appeal :- Floor space ratio, height of the building, streetscape, visual privacy, built form LEGISLATION CITED: Marrickville Local Environmental Plan 2001 Development Control Plan No.35 DATES OF HEARING: 21/12/2005 DATE OF JUDGMENT: 03/31/2006 APPLICANT Mr G McKee, solicitor SOLICITORS LEGAL REPRESENTATIVES: MCKEES RESPONDENT Mr G Christmas, solicitor Of: Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 31 March 2006 10478 of 2005 Glen McCormack v Marrickville Council JUDGMENT 1 This is a class 1 Appeal No. 10478 of 2005 between Glen McCormack and Marrickville Council in regard to a deemed refusal of a proposal to demolish an existing house and erect 2 semi-detached dwellings with Torrens Title subdivision at No. 4 Alfred Street, Marrickville. 2 The original application was for 3-storey dwellings with garages behind the front setback within each dwelling. Several amended designs have been done. At the hearing in October, the applicant asked for an adjournment to prepare more amendments. Directions issued allowed the parties to deal with the new plans within 3 weeks and seek a resumption date. The hearing did not resume until the end of December. The plans then showed 2-storey semi-detached dwellings with a carport behind the front setback on the western unit and a hardstand car-space within the front setback on the eastern unit. 3 The modified plans called the Revision E design were substituted in Exhibit A at the December hearing. In those plans the highest point of the roof had been lowered by about 0.5 m and in other places by over 2 m. Prominent second storey rooms at the front had been deleted and placed in a "rooms in the roof" design in the rear 2/3 of the building. Rear balconies at the upper level were reduced in size. This was partly due to the rooms off the balconies being changed from Rumpus rooms to bedrooms in each unit and the rumpus room deleted. 4 The site is on a hill, but due to the house on the western side, the land does not have significant views. The proposal by being 2-storeys would give each unit a district view towards the parkland on the Cooks River from the rear balconies. 5 The respondent remained concerned at the end of the hearing that the balconies were too big and would give rise to entertainment areas and overlooking that would disturb neighbours to the south and west. 6 The amended issues in Exhibit 7 were partly resolved with the Revision E design. Issue 1 in regard to Floor Space Ratio was deleted. Issue 2 in regard to the height of the building was deleted. 7 The remaining issues are: Issue 3: The proposed development would adversely impact on the character of the existing streetscape due to its excessive height, garage and carport within the front elevation and semi-detached style of building form. Particulars: Contrary to Objectives 01 and 02 and Control C3 and C4 of Part 3 Section 3B of the Urban Housing Vol. 1 Amendments 1 and 2 DCP No. 35 and Control C3 of Pt 2 Section B3 of the DCP. Issue 4 : The proposed development would adversely impact on the acoustic and visual privacy of adjoining properties. Particulars : The proposed first floor terraces would permit overlooking and cause impacts on Nos. 2 and 6 Alfred Street and 2A Princes Street. The proposed first floor balconies would create internal overlooking between the proposed dwellings. Issue 5: The proposed development would not compliment the existing built form of Alfred Street and would set an undesirable precedent. 8 The several sets of amended designs had been notified at different times for public comment. At the time of the hearing on site, the objectors had received the Revision C plans, and were shown the Revision D plans on site. 9 The applicable statute is the Marrickville Local Environmental Plan 2001 in which the site is zoned Residential 2(A). The proposal is permissible with consent of the responsible authority. The site is not in a conservation area, but the character of the streetscape is single storey Federation and California Bungalow Styles. 10 The respondents evidence was heard on-site from: · Mr Pearce resident objector of No. 2A Princess Street · Mr Hayek resident objector of No. 6 Alfred Street · Ms Hodson resident objector of No. 3 Alfred Street · Mr Vaughn resident objector of No. 11 Alfred Street. 11 Ms D. Laidlaw, consultant town planner, had been agreed by the parties to be a Court-appointed expert. Her report in Exhibit 5 was on the Revision C plans, and she had not supported those plans due to: · Floor Space Ratio excedance; · Streetscape impact of the prominent 2nd floor above the garages; · Streetscape impact of the garages themselves in that they dominated the facade in an area where the Federation houses had garages at the rear or side where they were unobtrusive; · Privacy impacts on neighbours. 12 Following her report the Revision D plans were prepared and in the week before the October hearing, His Honour Justice Talbot had allowed them to be relied upon, and for Ms Laidlaw to give oral evidence only as she received the plans a few days before the October hearing. 13 The applicant called no additional evidence but relied on cross-examination of the witnesses and, as mentioned, the Revision E plans prepared during the adjournment. 14 The site is a fan shaped allotment with a frontage of 13.43 m and a rear boundary of 21.24 m. The depth varies between 37.46 m and 41.89 m. There is a cross-fall of about 1 m at the street and about 2 m at the rear. There is a large rock outcrop in the rear eastern side that needs part-excavation to accommodate the rear living room and terrace of the proposed eastern unit. 15 The eastern neighbour at No. 2 Alfred Street is uphill about 1m higher than the site as the rock outcrop and the hill slope rises. Excavation will make the level difference about 1.5 m. They are concerned about possible instability. As seen on site the rock outcrops at the common boundary, and their house appears to be on solid rock. The proposal would require only the excavation of a toe of the rock within the subject property near the boundary to accommodate the northern unit. Suitable conditions of consent regarding excavation should protect their house from damage. There is also concern for overlooking from the rear upper balcony of the northern unit. 16 There would be more rock excavation in the back yard of eastern unit to accommodate its terrace and part of the house but this should not affect neighbours. 17 On the west there is already a low retaining wall on the boundary to No. 6 Alfred Street, but the change in level is only about 0.5 m at the boundary. The Hayek land continues to slope downhill to Princes Street (it is a corner lot). The proposed western unit projects about 3 m south of the rear facade of the Hayek house. At the ground floor level there is a courtyard on the western unit that extends about another 4 m and then lawn and garden at the rear. At the upper storey the rear bedroom extends about 3 m south of the rear facade of the Hayek house and the rear balcony another 2 m. 18 Number 2A Princes Street is at the rear or south end of the proposal. It too is down hill of the proposal, and its land slopes down to Princes Street. Its back yard occupies about the whole length of the rear boundary of the subject lot, the house is at the rear of the Hayek allotment. 19 The proposed subdivision would give each unit about a 6.5 m long front boundary to the street and a lot area of about 320 sq m. Obviously there is a brick party wall on the common boundary between the two semi-detached dwellings. 20 The fan shape of the allotment allows each dwelling to get wider towards the rear. The design provided for the ground floor only to fan out at the rear. This creates the width to allow the kitchen and living room in both units to have windows to the back yard. A narrower building would mean the kitchen would have to be back in the house past the living room, an unsatisfactory result for natural lighting and ventilation. 21 Putting a regular hipped and tiled roof on a fan shaped building is not a good design outcome, and the applicant dealt with this by keeping the upper storey rectangular in plan. This meant at the front each unit had a 900 mm side setback, to Nos. 2 and 6 Alfred Street and at the rear upper storey about a 3 m side setback. The ground floor had a 1 m side setback at the rear. 22 The part of the ground floor on each unit that projected out from the upper floor had a flat concrete roof at ground floor ceiling level and a planter box along the south side up to balustrade level to give some greenery to the rear bedroom and balcony, and additional privacy to No. 6. This was another change to the design that originally had the balcony occupying the flat roof. 23 The respondent wanted the ground floor cut back to the same setback as the upper floor, and the rear balcony further reduced in size. If the balcony is not reduced in size, the respondent wanted privacy screens around south and west sides to prevent overlooking of the Hayek's and the Pearce's back yards. 24 The Hayeks had claimed their yard beside the boundary with the proposal was highly prized private open space, and the Pearces on their part said a similar thing about their backyard and added they were hoping to put a swim pool in their yard and did not want it overlooked. 25 The applicant said on the inspection of the neighbours' properties, it could be seen the Hayek's windows visible from the southern unit are obscured glass to a bathroom and a laundry with stairs down to a clothes line beside the common boundary. That part of the yard is not well maintained, there was long grass at the time of inspection. South of the clothes line are some shrubs and low trees and beyond that a very large deck on top of the multiple garage to Princes Street. The deck had an amount of outdoor furniture and pot plants that made it obvious as the major used private open space of the Hayeks. The deck had views down to the Cook River parkland. The part of the yard near the common boundary is service yard. 26 The proposal is to have a fence and hedge planting along the boundary. No one on the ground level of the proposal will be able to see over into the Hayeks. At the upper level the applicant agreed to a privacy screen on the west side of the balcony, but not the south side. Any overlooking from it would be oblique and only into the south-east corner of No. 6's allotment. It could not constitute significant overlooking, especially since the balcony is off a bedroom and would only be used for family relaxation, not guest entertainment. The previous scheme the objectors were concerned about had 3 bedrooms and a rumpus room. It is now only 3 bedrooms in each unit. 27 In regard to privacy of other east facing windows in the Hayeks' house, the proposal had spaced its own windows so they would not be opposite any of the Hayeks', or made them highlights or obscured glass. Solar access is preserved to council's DCP No. 36 requirements. 28 In regard to the Pearce's back yard, the applicant had sight line drawings in Exhibit B. It showed the boundary fence and hedge vegetation proposed and sight lines for persons standing on the rear balconies. Such persons would not be able to see anyone standing in the back yard of the Pearces, except perhaps at the extreme east end as the yard rose up the hill. At that end is a substantial tree that gives screening, and there is an existing hedge with some gaps in the Pearce's yard beside the common boundary. So with the new 1.8 m fence, there is partial screening before any of the proposed vegetation grows. 29 The separation distances from the rear balconies to the rear boundary varies between 9 m and 15 m due to the fan shape of the allotment. Those distances alone are usually sufficient for reasonable suburban amenity in regard to visual and acoustic privacy. With the new 1.8 m high fence and the screen vegetation with growth to 2.5 m, acceptable privacy would be achieved. That is shown in the Revision E plans. 30 Ms Laidlaw agreed with the respondent in part that the planter box on the upper balcony in the Revision E plans should be extended so a person could not get out onto the flat roof above the living room as that would give a view from the east unit into No. 2's back yard, and on the west unit into No.6's back yard. With that amendment the flat roofs could have a non trafficable pebble roof finish rather than the tiles on the rest of the balconies. The privacy screens on the east of the eastern unit's balcony and on the west of the western unit's balcony should be located on the outside wall of the related planter box. The planter box vegetation could then be serviced from the related bedroom windows and balcony. The privacy screens being on the outside of the planter boxes need only be 1.2 m high. That also reduces visual bulk. She did not think privacy screens are needed on the south side. 31 Ms Laidlaw said she did not think the balconies needed to be reduced to 2 m wide. She said 2 m is a bit squeezy for outdoor chairs, and the deletion of the Rumpus room from each unit satisfied her the balconies would not be for guest entertainment. 32 The acoustic and visual screen walls between the two balconies and the fence between the two back yards of the units with the proposed landscape hedges would provide reasonable privacy between the units, she thought. 33 With those amendments Ms Laidlaw said the applicant's evidence and submissions on visual and acoustic privacy would achieve acceptable outcomes. 34 In regard to the streetscape issue, she thought the car-space in the front setback is now acceptable if paved in porous cell-block paving with Mondograss implanted to soften its appearance. The existing stone fence is in good condition and should be retained as it is authentic to the streetscape. The opening for the extra driveway could be made. That is shown on the Revision E plans except the car space is shown in crushed gravel. The respondent did not press for cell block paving. 35 In regard to its recognition as 2 semis rather than a single house, she said the allotment is wider than most others so it could take a larger building without drawing particular attention. Not everyone would realise it would be 2 semis. The lower single storey roof line at the street front maintained the character of the other houses. The carport roof with the Californian Bungalow style appearance also evoked compatibility. Being a largish structure it would dominate a car parked in it and retain the character. Putting a garage door on it would destroy the good design outcome and should never be allowed. 36 Ms Laidlaw agreed with the respondent that deleting the hardstand car space and making it into garden would make the appearance more like a single house in the streetscape. She added there appeared to be no parking congestion in Alfred Street, so the loss of the on-site car space would not cause a problem. Nevertheless she held to the opinion that deletion of the car space is now unnecessary. 37 In coming to a conclusion on the evidence and submissions, I note that Ms Laidlaw said with the changes incorporated in the Revision D plans (and further changes in the Revision E plans), that the design achieves Development Control Plan No. 35 Section B3 Streetscape and General Appearance Control C20: C20. Where it is proposed to carry out first floor additions to an existing house or introduce new development in a predominantly single storey streetscape, then it is essential that it maintain the perceived scale and character of the house and the immediate streetscape as predominantly single storey. This may be achieved by considering one or more of the following methods: · Disguising any proposed upper floor within the roof form · Utilising transitional roofing that disguises second storey portions and presents them as essentially "attic style" in form. · Ensuring that any upper floor levels are set back from the principal street frontage of the building, in order to maintain a substantial portion of the existing roof unaltered over the front of the building, and · Ensure the first floor additions are behind the main gable or hipped feature of the street frontage. 38 She said the amended design achieved all those points. The lowering of the roof has created a "main gable" at the peak of the roof, behind which the first floor spaces begin. The face of the gable has windows to En-Suites, that gives the "attic style". The main gable where the first floor areas begin is 7 m behind the street façade that has the distinct appearance of single storey. Ms Laidlaw felt the design now successfully disguises the upper floor in the roof form to the extent that a casual observer may not realise there is a second storey. 39 I agree with this evidence. 40 In regard to the planter boxes and privacy screens to the rear balconies, I have looked at the elevation and section plans in Revision E. The balustrades in the Revision E drawings on the outside of the flat roof over the living rooms of each unit should be deleted. The privacy screen on the outside wall of the planter boxes should be extended across to the southern edge of each balcony so that persons cannot get through onto the pebble finish roof over the living room below. This extension also provides a better sight line cut off for privacy of the neighbours. The planter boxes can be serviced from the bedroom windows and the balconies. 41 The parapet on the balcony and the pebble roof edges can be reduced in height to be only 200 mm above the balcony floor and the pebble roof. That reduces visual bulk further. 42 On privacy screens between units, again looking at the Revision E drawings, a visual and acoustic privacy wall is provided between the rear balconies up to 1.8 m high. That is satisfactory for persons on the balconies, but the same persons would have rather direct views down into the yards of the adjoining semi. 43 At the ground level there is a common boundary wall and privacy screen above the BBQ units to the rear terrace of each unit. The screen is a horizontal wooden batten type up to 1.6m above terrace level. It seems obvious with the activity at the BBQ bench, and reflection of sound off the concrete balcony slab above, there would be little acoustic privacy between terraces. The terraces being just outside kitchen and living room doors of each unit, conversations/music etc inside would be heard on the adjoining terrace whenever the door(s) are open. An acoustic wall should go full height up to the soffit of the balcony slab and extend from the kitchen wall for the length of the BBQ benches and continue 1m east of the balcony edge above. 44 That being the case I am of the opinion a timber batten visual screen to match those on the elevations should extend out 1m east of the upper balcony visual and acoustic privacy wall. The screen can be attached to the latter wall and sit on the top of the acoustic wall below. That will afford reasonable privacy to the rear yards of each unit until the screen vegetation on the common boundary grows. 45 In regard to the conditions in dispute in Exhibit 6, I note the parties agreed Part A conditions 1, 2, 7 and 8 are deleted. The evidence and submissions convinces me that Part A conditions 3, 4, 5 and 6 are unreasonable and unnecessary also. The conditions necessary to give effect to the changes outlined above are inserted in Pt A. 46 I note that during the negotiations the applicant agreed that Strata Subdivision is more appropriate than Torrens Title. The change will assist in achieving Section 3A Subdivision Objectives of DCP No. 35. That will ensure that the two semis will be maintained in the future as one property and retain the character of a single dwelling to the extent found satisfactory by Ms Laidlaw. I allow the amendment of the application to Strata Subdivision and include a condition in Pt A requiring a preliminary Strata Plan to be provided to the council. 47 A fresh natHERS assessment had been prepared for the Revision E plans that showed it satisfactory under DCP No. 35. 48 The parties also agreed in Pt B Condition 10 the 2 replacement trees needed a growth height of 4 to 5 m not 10 m. 49 Overall I have come to the conclusion that with appropriate conditions, the development is satisfactory and the issues satisfied, therefore the Orders of the Court are: 1. The appeal is upheld. 2. Deferred development consent is granted to demolish an existing house and garage and erect two semi-detached 2-storey dwellings at No. 4 Alfred Street, Marrickville, as shown on Project No. 04.07 Drawing Nos. DA01E, DA02E, DA03E, DA04E, DA05E, DA09C, LD01D by Glenn P McCormack Architect, all as amended by and built in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits 5, 6, 7, A, B, C and F. ___________________ K G HOFFMAN 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.