Melocco and Moore Architects v Leichhardt Municipal Council [2005] NSWLEC 587

Land and Environment Court of New South Wales

CITATION : Melocco and Moore Architects v Leichhardt Municipal Council [2005] NSWLEC 587

APPLICANT Melocco and Moore Architects PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 10320 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Alterations and additions to existing dwelling - building location zone - heritage significance - conservation area

Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000 LEGISLATION CITED: State Environmental Planning Policy No. 1. - Development Standards State Environmental Planning Policy No. 55 - Remediation of Land

DATES OF HEARING: 23/08/05, 13/09/05 and 15/09/05

DATE OF JUDGMENT: 10/26/2005

APPLICANT Mr A Whealy, solicitor SOLICITORS Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

26 October 2005

10320 of 2005 Melocco and Moore Architects v Leichhardt Municipal Council

JUDGMENT

Introduction 1 This appeal relates to Development Application No. D/2004/482, which is for alterations and additions to the existing dwelling at 11 Simmons Street, East Balmain. The dwelling is known as "Rock Lodge". More particularly the proposal involves: the partial demolition of more recent extensions to the building; a new two car carport and access off Simmons Street, a new swimming pool; alterations to an existing boat shed; and a new elongated single-storey pavilion style extension ("the pavilion extension") to the rear of the dwelling overlooking the harbour. 2 The site is situated on the eastern side of Simmons Street in close proximity to the Simmons Point Reserve. It is rectangular in shape and has an area of 690 sq m. It falls approximately 10 m from Simmons Street towards the harbour. There is a large mature lemon scented gum tree on the site that is to be retained. 3 The locality is predominantly developed with two-storey dwelling houses although there is some commercial development nearby. Adjoining the site to the south at 7-9 Simmons Street is a large two-storey building comprising a semi-detached pair of dwellings. To the north at 13 Simmons Street is a two-storey detached dwelling. Like Rock Lodge these properties have a water frontage and expansive harbour views. Statutory provisions 4 The site is situated in the Residential Zone under Leichhardt Local Environmental Plan 2000 ("the LEP") and in this zone the proposal is permissible with development consent. 5 Clause 7(3) of the LEP provides that consent must not be granted unless the relevant objectives of the plan are taken into account and that the proposal is consistent with those objectives. The general objectives of the LEP are contained in cl 13 and relevantly deal with the protection of natural features, character, appearance and heritage. 6 The relevant heritage and conservation objectives are contained in cl 15 and are as follows: (a) to protect, conserve and enhance the cultural heritage and evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, tree, potential archaeological sites and conservation areas and provide measures for the conservation, (b) to protect, conserved and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridge lines and skylines, (c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items, (d) to allow compatible and viable adaptation and reuse of the fabric of heritage significance, 7 The site is also located within the Balmain Conservation Area ("the conservation area") and is located within the vicinity of Simmons Reserve, a listed heritage item under the LEP. Hence cl 16(7) and (8) of the LEP are applicable as follows: (7) Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect that carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item. (8) Consent must not be granted for the demolition, reconstruction, adaptation or erection of the building, the carrying out other work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to: (a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or aboriginal site that would be affected, and the contribution he makes to the conservation area, and (b) the compatibility of the proposed development within the conservation area, including the size, form, scale, orientation, citing, materials, landscaping and details of the proposed development. 8 The site is also subject to a Foreshore Building Line ("the building line") of 41 m when measured from the Simmons Street frontage. The purpose of the building line is to protect the scenic qualities of the locality when viewed from the water. The majority of the proposal complies with the building line with the exception of a stair. In this context and because the foreshore building line is a development standard, an objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") has been provided. Other structures within the area protected by the building line include the swimming pool and boat shed but these are excluded from the control. 9 Clause 19(2) of the LEP imposes a maximum floor space ratio of 0.7:1 for this site and cl 19(3) contains landscaped area requirements including requirements for substantial deep planting. The proposal comfortably complies with these development standards. 10 Also applicable is Leichhardt Development Control Plan 2000 ("the DCP") which includes the site in the Balmain Suburb and the East Balmain Distinctive Character Neighbourhood. Part 10.6.2 of the DCP describes the relevant desired future character, making reference to the rarity of early Victorian buildings that are of great importance to the history of early Sydney. Such buildings should be protected. Associated controls include the need to maintain individual patterns of architectural style and the character of the area by keeping development consistent in architectural style, building form and materials. All development is to be sympathetic to the historic and conservation values of the neighbourhood. Mature trees should be maintained. 11 Part B1.2 of the DCP sets out specific guidelines and controls including a building envelope control and a building location zone. New development is required to be located within the building location zone which is determined by averaging the front and rear setbacks of both of the adjacent buildings on either side of the subject site. The proposal extends well beyond the building location zone. The DCP allows non-compliances subject to the proposed building footprint being appropriate. To meet this test, certain issues must be addressed including: bulk and scale as viewed from adjoining properties; amenity of adjacent properties; retention of existing significant vegetation; character and scale of surrounding development; and solar access. Advertising and Council's decision 12 The application was advertised and eight objections were received from nearby residents, the Balmain Association and another resident group known as Defenders of Sydney Harbour Foreshores. Matters of concern to these objectors include: + Non-compliance with various council controls; + Failure to respond to the heritage significance of the existing house and adjoining houses; + Amenity impacts including view loss and swimming pool noise; + Loss of on-street parking.