Land and Environment Court of New South Wales CITATION : Waters v Leichhardt C [2005] NSWLEC 390 APPLICANT P W Waters PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 10167 of 2005 CORAM: Hoffman C Appeal :- Demolition of existing dwelling and construction of a two storey dwelling - Setbacks - Bulk and Scale - Floor Space Ratio - Visual Bulk - Impact on Views - Carparking - Height - Privacy - Streetscape. KEY ISSUES: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 LEGISLATION CITED: State Environmental Planning Policy No. 1 Leichhardt Development Control Plan 2000 CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 29/06/2005 and 30/06/2005 EX TEMPORE JUDGMENT DATE : 06/30/2005 APPLICANT Mr C. J. Leggat, barrister of Shaw Reynolds Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr M. Lyons, solicitor of Leichhardt Council Ms J. Reid, solicitor Mr G. Green, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 30 June 2005 10167 of 2005 P W Waters v Leichhardt Council Note: date of production of this transcript 21 July 2005 JUDGMENT 1 This is a Class 1 appeal No. 10167 of 2005, between P W Waters v Leichhardt Municipal Council, in regard to the refusal of the demolition of an existing single storey cottage and the erection of a two storey house above a semi basement garage at No. 194 Short Street, Balmain. 2 The site is oriented North-west and south-east but for ease of description during the hearing the objectors and the parties adopted the street front as the east side, the neighbours at No. 192 being on the south, the uphill neighbours at No. 231 and No. 233 Rowntree Street are on the west, and the neighbours at No. 196 Short Street being on the North. 3 The drawings in exhibit A showed the elevation facing No. 192 as the east elevation, when it should have been the south or south-west elevation and showed the elevation facing No. 196 as the west elevation when it should have been the North or the North-east. The elevation facing No. 231 and No. 233 were shown as the North elevation when it should really have been the west or the North-west. 4 On the east side of Short Street, opposite the site, is a high pike staff fence. Behind the fence is about a 10 m cliff down to an apartment development on the foreshore of Mort Bay. That development is on land that used to be the Mort's Dock shipyard. As a result the houses along about a 200 m length of Short Street, had unobstructed views over Mort Bay towards the East Balmain peninsula and the city skyline beyond. The issues in the appeal are: Issue (1) Floor Space Ratio. The proposed development does not comply with the Floor Space Ratio development standards set out in cl 19(2) of the Leichhardt LEP 2000: "Clause 19(2). Except where the development is carried out in accordance with cl 23(1) consent must not be granted to the carrying out of a residential development on land within a density area if it will result in a Floor Space Ratio exceeding the ratio shown for the density area as in Balmain, 0.7:1." The proposal would result in a Floor Space Ratio of 0.86:1 excluding the internal carparking or 0.98:1 including the internal carparking. Council says that although the ground parking level, Lower Ground Floor Plan, DA04A does not protrude more than 1 m above existing ground, it should not be characterised as a basement because the garaging is at a similar level to the adjacent street and because the garage level is wholly visible from the street. The garaging at this lower ground floor level is more appropriately characterised as "internal carparking spaces", which are not excluded from the definition of gross floor area. The definition of gross floor area in Leichhardt LEP 2000 is: "The total of a building's floor space measured between the outer edges of the outside walls or the centre line of any party wall and includes mezzanines, attics, internal car spaces, garages, lofts and studios. It does not include projections outside the external walls of the building, paved areas, voids or basements used for carparking where the carparking area does not protrude more than 1 m above ground level." Ground level is defined in the statute as the level of ground at 24 October 2000. Even if the garaging is held to be a "basement", council's view is that because the garage level is above the level of the adjoining street and is wholly visible from the street, it contributes to the overall bulk of the building and this should be taken into account when a determination is made as to whether the State Environmental Planning Policy No. 1 objection is supported. The objectives of the Floor Space Ratio standard are set out in cl 17(a) of Leichhardt LEP 2000 specifically: "To provide development standards to ensure that the density and landscaped areas of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt DCP 2000 to achieve the desired future of character". More generally the purpose of the FSR control is to control the bulk and scale of development and its consequent impacts. Council does not support the State Environmental Planning Policy No. 1 objection submitted by the applicant in relation to Floor Space Ratio because: (a) the excedence is significant; (b) the visual bulk of the development is of concern in terms of the impact for the Short Street streetscape including the boxy and dominant form of the dwelling house and the visual impact of the garage and street level presentation; (c) the proposal is not consistent with the suite of controls contained in DCP 2000 and the objective of the Floor Space Ratio control is that development density should take into account this suite of controls. In this regard the proposal does not comply with the building on local or side set back requirements of DCP 2000 and it is inconsistent with the intent of the front set back control in that it protrudes closer to the street at first floor level than its neighbours; (d) the variations to the Floor Space Ratio control and to the suite of controls in the DCP are closely associated with merit concerns raised by council associated with the bulk of the building. This presentation of Short Street and its impacts on views to residents of Rowntree Street at the rear; (e) The applicant's State Environmental Planning Policy No. 1 objection is not well founded because it is predicated on the assumption that the garaging and rooms at the lower ground floor level do not contribute to the visual bulk of the proposed building when the opposite is the case. Whereas the applicant contends that the garaging and the habitable floor area at lower ground level should be excluded from the Floor Space Ratio of calculation, Council's contrary view is that the garaging and habitable floor space at this level, both clearly contribute to visual bulk from a merit perspective and the visual bulk of these areas must be fully taken into account when assessing the consistency of the proposal with the intent of the standard. Also the State Environmental Planning Policy No. 1 objection is predicated on the assumption that there is no impact from the non-compliance in terms of streetscape and amenity. Council's view is that a reduced building envelope would lead to a more sympathetic presentation to the street including a stepping back at upper levels and a reduced impact on views to neighbours to the rear by setting in the upper level to a greater extent from the side boundary so as to maintain view corridors. In council's assessment the view loss to neighbours is primarily the result of the reduced side setbacks at the first floor plan rather than the height of the roof per se , that is it results from the prolongation of the vertical walls from the floor below at the same side setback compared to the existing building where the setback at this level effectively increases due to the hip form of the roof. Issue (2). Non-compliance with the provisions of B1.2 of Development Control Plan building envelope, form and siting - side setbacks. The proposal does not comply with the side setback requirements set out in part B1.2 of the Development Control Plan, which would require the proposed building to be set back in excess of 4 m. Although s B1.2 of the DCP provides that council may consider variations to the side setback control where specified criteria are met, council considers that the proposal does not meet those criteria in that: (a) higher proportions of the buildings are not set back in accordance with the setback control. The proposal conversely maintains the same side setback at ground and first floor level and it has a parapet style of roof. This is a critical issue in terms of the view corridors obtained by residents of Rowntree Street to the rear because these properties obtained view corridors along the existing side setbacks and across the pitched slope of the existing hip roof rather than the upper most ridgeline. Had the proposal respected this design principle then view corridors would have been maintained; (b) the bulk and scale of the development is not minimised by reduced floor to ceiling heights. Although floor to ceiling heights have been lowered under the current amended plans they are not reduced compared to the relevant residential development standards. For example the state government's residential flat design code and a 2.4 m floor to ceiling height is maintained for the garage, but floor level of this garage unchanged. As identified by council's architect planner there is scope for the garage to be lowered further into the ground similar to No. 192 Short Street, although No. 196 Short Street has its garage at street level. It will be noted that the approved plans for this development notated this as an existing garage. Council submits that to use excessively elevated floor levels are particularly unreasonable as the steep fall in levels on the opposite side of Short Street is such that there is no interruption to the views available to the subject property from development on this low side. The additional bulk arising from these design features has adverse consequences in terms of the streetscape, and in terms of the amenity of the adjoining properties and properties to the rear as in bulk and view loss; and (c) the potential impacts on amenity of adjoining properties in terms of privacy and bulk and scale are not minimised. Issue (3) Non-compliance with the provisions of B1.2 of DCP 2000 building envelope form and siting-building envelope. The proposal with a front wall height of up to 8 m, measured from existing ground level, as opposed to finished ground level which is lower, presents a significant variation to the 6 m building envelope control contained in part B1.2 of DCP 2000. This results in an unduly dominant and hard edge to the street with a vertical rise of three storeys incorporating limited articulation on the vertical plane. Council's view is that the first floor should be set back further from the street to respect this control and to present at a lesser scaled, wall to the street with the upper most level appearing more recessive. Issue (4) Non-compliance with the provision of B1.2 of DCP 2000 building envelope form and siting-front setbacks. Council submits that the proposal does not present a satisfactory relationship to the front boundary/streetscape of Short Street particularly insofar as its first floor level projects by around 1.35 m closer to the street and neighbouring developments to either side. This results in the proposal presenting a more dominant form and a harder edge to the street than the adjoining houses, which cut back and incorporate greater articulation. The glazed balustrading will tend to add to, rather than reduce bulk and a more open form would be preferred. Issue (5) Impact on views. The proposal will have an unreasonable adverse impact on view corridors towards the city and harbour as enjoyed by residents of Rowntree Street, to the rear including No. 227, No. 229, No. 231 and No. 233 Rowntree Street. These properties enjoy limited but highly valued views along the corridors provided by the side setbacks of the existing cottage and across the pitched form of the existing hipped roof. The impact is unreasonable in absolute terms and also having regard to the fact that the impact arises or is otherwise to be associated with non-compliances with the building envelope provisions of part B1.2 of DCP 2000 and the Floor Space Ratio standard of LEP 2000. In this regard the proposed development does not comply with the side setback provisions of part B1.2 of DCP 2000 and reduces the side setback on the eastern side compared to the existing cottage. In addition, whereas the existing cottage has a hip roof form which allows views, both through the side setback and over the sides of the roof, the proposal extends its wall up to the maximum height which exceeds that of the existing cottage and does not set in further from the side boundaries at the upper most level in a manner promoted by part B1.2 of the DCP in circumstances where there is a variation sought to the side setback provisions. Additionally, due to the Floor Space Ratio non-compliance with LEP 2000, the overall size of the building is greater than anticipated by that LEP. The proposal is contrary to the objectives of part B3.4 of the DCP access to views which provides: "Ensure existing views and vistas are protected and enhanced where possible, and provide new view sharing between new and existing development". It is contrary to both of the controls set out in this part and its design is contrary to the guidelines to promote view sharing including: (a) reducing the height and bulk of the building; (b) incorporating more generous setbacks; (c) introduce greater gaps between proposed buildings; (d) breaking up the proposed built form; (e) minimising floor to ceiling heights; (f) using raked ceilings to upper floors and (g) using hipped or gabled roof forms. Issue (6) Inconsistency with pt B1.5, elevations and materials and pt B1.6, front gardens and dwelling entries, of DCP 2000. As particularised under issues 3 and 4, council submits that the overall form of the development as presented to Short Street, is inappropriate by reason of its height at the street and the lack of articulation of its form leading to an unduly dominant and box-like presentation. The extent of glazing and the use of glazed balustrades is inappropriate and a greater proportion of solid elements should be used to articulate a more vertical rather than as proposed horizontal proportion to the built form. By slightly lowering the building without addressing this need for more vertical proportion the amended plans actually exacerbate council's concerns in this regard. In terms of these aspects the proposal does not take reference from and complement the existing streetscape character. The proposed treatment at pedestrian level on Short Street is improved under the amended plans. However, the dwelling entry remains to the side of the house. It does not address the street. The effective garage width is maintained notwithstanding the planter bed placed in front of part of it and the floor level and prominence of the garage is not changed. This is contrary to pt B1.6 of DCP 2000, which has the objective: "design front gardens to act as transitional spaces between the public street and private dwellings, which improve security and contribute to the streetscape". Issue (7) Inconsistency with pt B1.3 of DCP 2000, design of car parking. The proposed car parking arrangements presents an unsympathetic appearance to Short Street and is contrary to the design guidance set out in pt B1.3 of DCP 2000. This part requires, inter alia , that where garaging forms part of the main front wall of the dwelling it must be less than half the width of the building and it must be subordinate to the main elevational detail. The proposed garage entry at 5.6 m is over half of the building width of 10.8 m. Additionally, as the garage has been placed at the same level as the street it forms an unduly dominant element at the front elevation of the building. This adverse impact is then compounded by the harsh and unsympathetic impact of the high wall, which extends across the remainder of the frontage. Although this is softened to some extent in the amended plans by the incorporation of the planter beds this feature is still primarily structural rather than of soft landscaped character. Council's view is that the floor of the garage should be lowered below the level of Short Street and reduced in width similar to the approach adopted in No. 192 Short Street. A single width driveway should be used which could then fan out under the building allowing for two angled car spaces. The remainder of the frontage should be treated in a more pedestrian friendly fashion incorporating soft landscape elements, lower and less dominant built structures and a more visible dwelling entry. Council notes that the garage to No. 196 was notated on the approved plans for this dwelling as a pre-existing garage and this should not be used as a reference point for the subject development. Issue (8) Issues raised by residents: (a) impact of view loss from the square form of the building which does not set in at the upper level and interrupts views to the harbour and city from the residential properties located behind the site in Rowntree Street; (b) the bulk and scale of the building is uncompromising and it is out of character, the building is unduly dominant and its square shape is inappropriate; (c) three storeys is inappropriate, it should be two maximum; (d) the building should set in from the side and upper levels like No. 192 and No. 196 so as to maintain view corridors for Rowntree Street, for residents who have already suffered view loss through the construction of No. 192 to No. 196; (e) bulky form such as this will create a cumulative impact and erode the character of Short Street; (f) loss of privacy from rear rooms to Rowntree Street properties located to the rear; (g) proposal will adversely affect views from the foreshore contrary to statutory plans for Sydney Harbour in terms of its blocky form and extensive areas of glazing; (h) loss of existing cottage; (i) shadow diagrams are incorrect, energy efficiency of proposal is inadequate; (j) bulk impact to No. 192 and No. 196 Short Street from the protrusion of first floor beyond these properties building lines at that level and (k) rear study will look into No. 196's rear garden. Issue (9) Insufficient information. In accordance with the design element 16 pt B2.8 of the Leichhardt DCP, a landscape plan must be submitted showing planting, paving and other details of external areas of the site. The landscape plan must comply with the principles, rationale, guidelines and controls of design element 16 of Leichhardt DCP. 5 That concludes the issues. 6 Appearing for the applicant were: + Mr C J Leggat, barrister, + Mr C H Shaw, solicitor of Shaw Reynolds Solicitors, + Mr P Waters, applicant, + Mr S Kennedy, architect and Mr A Nolan, architect, both of Kennedy Associates Architects for the proposal. 7 Appearing for the respondent were: + Mr G Green, solicitor of Pike Pike & Fenmwick, + Ms J Reid, solicitor of Pike's, + Ms M Lyons, legal manager, Leichhardt Council and + Ms D Laidlaw, consultant town planner, + Ms F Bray, resident/objector of No. 233 Rowntree Street, + Mr F Fricke, resident/objector of No. 229 Rowntree Street and + Mrs O'Grady, resident/objector of No. 231 Rowntree Street. 8 The parties had agreed to the appointment as a court expert of Mr N. Dixon, architect and urban designer. 9 The issues in this matter being quite complex it simplifies consideration to go straight to the final submissions of the on site hearing. 10 There is in exhibit E a heritage impact assessment for the demolition of the existing cottage. The site is in a conservation area. No issue is raised in regard to it. The impact statement says the existing building is a post-World War II modified fibro cottage. It does not contribute to an understanding of the significant phase of residential development in Balmain, nor the local area and it is not of any inherent significance for heritage, aesthetics, technology or streetscape reasons. 11 Of interest in this appeal is that the land from No. 190 to No. 196 was originally part of the Morts Dock land but remained undeveloped until the late 1950s. To some extent that explains the Victorian terraces south of No. 190 in Short Street and the Victorian two storey corner store North of No. 196 on the corner of Short Street and Ballast Point Road. The store has its side boundary and rear yard to Short Street and has been converted to a residence. There is a recent contemporary addition in the rear yard and a high masonry fence and a substantial contemporary garage adjoining No. 196. 12 The heritage impact statement notes that: "Short Street is characterised by one and two storey late Victorian and early Federation terrace dwellings to the south-east. The character of the streetscape changes in the vicinity of the subject site with a number of new contemporary styled detached and terraced style in-fill dwellings." 13 The respondent conceded in final submissions that a contemporary style that still met most of the other controls was appropriate for this site due to the contemporary-looking new houses on No. 190, No. 192 and No. 196 Short Street, and the modern additions to the corner store. The buildings are on both sides of the proposal, creating a pocket of different character to the rest of the street. 14 In practical terms the respondent submitted an appropriate design might be arrived at by the general descriptions as follows: (1) Reduction in the level of the garage and the garage slab and commensurate reduction in height of the building. (2) Reduction in width of the garage and its dominance to the street. (3) Removal of the high wall of the remainder of the frontage and incorporation of soft landscape elements. (4) Setback from the side boundary at the uppermost level, especially important to the western setback to maintain the view corridor at No. 227 to No. 229 Rowntree Street. In saying this, the respondent accepted it will be difficult to retain view corridors to No. 233 and No. 231 Rowntree Street. (5) Uppermost floor to be set back further from the front boundary and the floors below so as to soften its edge, create a more articulated form and assist in maintaining view corridors. (6) Extent of glazing to be reduced and replaced with more solid elements, create a more vertical proportion through the use of solid or expressed elements. 15 To understand this position, and the applicant's position I go to the evidence. 16 Mrs Bray and Mrs O'Grady said the construction of No. 192 and No. 196, the large contemporary buildings to the east of their properties, had taken much of their pre-existing views. No. 192 was a semi-detached two dwellings, two storey above a garage and No. 196 was a two storey dwelling above a garage. Having been robbed of most of their views by those two buildings the existing house on the subject site at No. 194 being single storey and having a pitched roof at least gave them some views via the side setbacks; they wanted to keep them. 17 At Mrs Bray's, I could see the impact of No. 196 but I was hard pressed to see what she meant in terms of retained views. The thick vegetation on her land and the subject land obscured most of what might have been views. She said the vegetation had grown in the last two years. The vegetation I saw that obscured the views, and as attested to by the applicant, was much too mature to be only two years old. 18 At Mrs O'Grady's the vegetation was thinner and you could see the tops of Centrepoint Tower and the City Bank building at Park Street in one direction and one tower of the Anzac Bridge beyond the Balmain ridge on the other. The impact of No. 192 on her views could be seen also. 19 At Mr Fricke's there was a view between No. 192 and the existing house on the subject site down into Morts Bay to the Thames Street ferry wharf, the East Balmain ridge and the city beyond. It was shown in a photograph in exhibit 7. Mr Fricke drew on it what he thought the reduction of the view would be as a result of the proposal. It took out part of the East Balmain ridge and about half of the water view. 20 Mr Waters showed photos of the pre-existing vegetation on No. 192 and his own land that had been removed in 2001 when No. 192 was built. At that time the vegetation would largely have obscured the view that Mr Fricke now had. Mr Waters also opposed a draft condition that sought that any new vegetation in that corridor be restricted to plants with a 3.5 m growth height. The applicant put at the same time that the side setback of the proposal was to be kept at the same 2 m as the existing house on the south boundary. 21 In No. 192 adjacent to the south boundary of the site it was all concrete paving so no vegetation was likely to grow there in the future. Also, No. 192 stepped further away from the boundary at its upper level allowing a somewhat wider view. 22 The part of the proposal on No. 194 that blocked part of the remaining view to Mr Fricke was the top floor east portion of the proposal. The respondent put, Mr Dixon agreed, that since the proposal was well above the Floor Space Ratio such an impact was unacceptable. 23 The respondent put a similar opinion in regard to the view loss for Mrs Bray's at No. 233 saying the existence and then the removal of vegetation at No. 192 showed view obstruction by vegetation was transient. Some glimpse of the view between the proposal and No. 196 should also be possible in the future. 24 The applicant protested that this was a change of opinion by the Court appointed expert Mr Dixon in par 40 of his report of 13 May 2005 and par 52 of his report of 24 June 2005. The applicant had relied on the report and could not accept this change of opinion. Those paragraphs said the loss of views to the neighbours would not be significant. 25 Mr Dixon said, he had recommended a number of changes to the proposal but the applicant had only lowered the overall height so that the highest part of the skillion roof and parapet was the same height as the existing house ridge top. He noted the existing ridge top was only about 3.6 m long, the skillion and parapet roof of the proposal was full width of the building and carried forward to the eastern façade. The height reduction was a small improvement because it meant the north-east and south-east corners of the roof obscured the view corridors for the western neighbours. If not for that views might have been possible between the proposal and its two bulky neighbours at No. 192 and No. 196 Short Street. 26 Mr Dixon said he also sought to have the North side setback adjacent No. 196 to be the same as the existing house at about 1.8 m instead of 900 mm. 27 The applicant protested that No. 196 had zero setback at ground level, and at its top floor it had setbacks the same as the proposal. The applicant said that it should not be required to compensate for past approvals of the council that had done the main damage to the views of the western neighbours. The height of the proposal was now less than No. 196 and only about the same as No. 192. 28 Mr Dixon held to his revised opinion. Also he held to his other opinion that the streetscape impact of the proposal was not acceptable due mainly to the top floor coming forward of the front setback of the top floors of No. 192 and No. 196. 29 The applicable Development Control Plan controls and existing streetscape required buildings to step back with the topography. No. 192 and No. 196 at least did that. The proposal actually stepped back at the basement level and then cantilevered forward again at the ground and the top floor. It would result in a dominant structure whereas a better urban design and streetscape outcome would be to take the top floor back to the alignment of the top floors of No. 192 and No. 196. 30 Mr Kennedy said the Development Control Plan had a BLZ or building location zone that set a vertical front setback plane on a line between the ground floor terraces of No. 192 and No. 196 as on drawing 0408 DA 02A. There was no need to set back further and the greater recess at the basement level was a compensation for the forward projection higher up. Mr Kennedy thought his design was a quieter and less dominant design than either No. 192 or No. 196. 31 Mr Dixon disagreed that it was a better streetscape design outcome. He also noted that whereas No. 192 and No. 196 appeared to have basements only used for carparking, the proposal had a rumpus room, toilet, large store room, stairs and a large rainwater tank storage room in the basement. There was a large glass sliding door to the rumpus room at street level and a separate entry door. It was visible and almost like a granny flat. He said it added to the perception of bulk and made the proposal look three storeys instead of two storeys above a garage. 32 He thought that the basement spaces except for the garage and the rainwater tank room should be deleted and the drive entry reduced to a single car opening although the basement could still provide for two cars and a work bench and storage for bicycles and other household goods. 33 The evidence on bulk went to the definition of gross floor area in the applicable control. It allowed no counting of the floor space of: "basements used for car parking where the car parking area does not protrude more than 1 m above the ground level." 34 Ground level is identified as existing ground level as at 24 October 2000, which on this site is as the level at the time of this hearing. In that case the applicant said the whole basement was below ground level and only garage entry was visible and being an access to the garage it must be visible from the street. Also, the definition did not say- "only the area in a basement used for carparking-is not to be counted" or that-"the basement must only be used for carparking"-. Therefore, the inclusion in the basement of the rumpus room, the bathroom and the large storeroom and stairs is acceptable the applicant said, and should not be counted in the FSR or gross floor area. 35 Mr Dixon rejoined that the rumpus room was highly visible and the extent of a double garage door with an apron full width that would be big enough to take two cars outside the garage could not be ignored when the objectives of the Floor Space Ratio were considered. It stated in cl 17(a) of the Leichhardt Local Environmental Plan 2000: "To provide development standards to ensure that the density and landscaped areas of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character." 36 Of course, more generally the purpose of the Floor Space Ratio control is to keep within certain bounds the bulk and scale of development and its consequent impacts. 37 The applicant put that the standard Floor Space Ratio applicable was 0.7:1 and without the carparking and rainwater storage floor space in the basement the proposal would be 0.854:1 and without the whole basement 0.68:1. Therefore, considering that the basement was all below existing round level and did not contribute to bulk the exceedence was not unreasonable since the ground and upper floor of the proposal would be less than 0.7:1. This was dealt with extensively in details in a State Environmental Planning Policy No. 1 objection in exhibit C. 38 The respondent countered that there was a maximum height exceedence above the 6 m limit and that was verified on drawing 0408/DA09A on the south-west corner of the house. And, the side setback envelope control was exceeded. Added to the other matters the Floor Space Ratio exceedence could not be justified, especially when there were view impacts that must be related to height and bulk. The test case of Tenacity v Warringah [2004] NSWLEC 140 was referred to. 39 The respondent in final submissions conceded that the side setback envelope control was a very stringent control that would restrict any development in Balmain to a single storey building and having to have a side boundary setback whereas most of Balmain contained two storey terraces with zero setbacks. It should not therefore be determinative in this matter. However, it emphasised the need for other matters to be acceptable. 40 In turning to the desired future character for the Morts Bay area I take note of: "Conserve existing varied styles of housing with special regard to the modest scale and simple unadorned nature of the architecture, preserve view lines to the north and east over Morts Bay by stepping buildings with the prevailing topography, preserve the established setbacks for each street, preserve the consistency and simplicity in built form, style and materials of the neighbourhood, maintain the existing roof form, setbacks and fencing styles prevalent in each street, two storey is more common in some areas where a 6 m wall height is appropriate, pitched and complex roofs are appropriate." 41 Overall, I have concluded that I agree with Mr Dixon on his streetscape conclusions that the proposal is unsatisfactory. The top floor of the proposal as it is currently designed should set back in line with the top floor walls of No. 192 to No. 196 and not the eastern edge of their balconies. 42 I can also agree that reducing the width of the entry driveway and apron and providing more street front landscaping could further improve the streetscape appearance. 43 Due to the desirability of achieving gravity drainage from the basement to the street I do not think lowering the basement floor slab is needed if those other provisions take place. Lowering the height of the building I do not see as essential if the top floor is moved westwards. Lowering the building would make diminutive, unnecessarily, the proposal beside No. 192 and No. 196, which are large buildings in the streetscape. Moving the top floor westwards would reduce view losses for the neighbours at the rear by moving the bulk that obstructs the views in the north-east and south-east corners. If the northern elevation and southern elevation roof lines could be stepped or sloped as has been done in No. 192 and No. 196 to give a little widening to the view corridors that would be helpful. 44 The respondent wished to include more elements of vertical proportion, as can be seen in the window and door frame proportions of No. 192 and No. 196. That is not particularly evident in the current design. In fact, Mr Kennedy said he was aiming for a more horizontal look. In producing a contemporary aesthetic a skilled designer may be able to create a satisfactory design with additional vertical accents so the proposal fits into the group of contemporary buildings at this northern end of Short Street. 45 In terms of the Floor Space Ratio it seems to me the necessary changes to the basement level for streetscape reasons means most of the non-car parking or rainwater storage uses would be eliminated from that level and bring the Floor Space Ratio much closer to the 0.7:1 standard. The carpark could be made large enough to manoeuvre two cars in through a narrower garage door and to provide for workbench, bicycle and domestic storage. 46 The applicant was particularly concerned about the time the applicant has taken already with the processing of this design and sought in submissions that if the Court could give a finding and defer final orders it would allow time to consider appropriate amendments. Although the respondent pressed refusal it did not cut off the option put by the applicant. In looking at the plans they are capable of adaptation without great effort but amended plans would be needed and they would require council to assess them and possibly re-notification. 47 I have chosen to take the course of providing findings at this time and so the applicant may, if it so chooses to, prepare amended plans and submit them to the respondent. 48 From the date of publication of these findings the applicant is directed, if they so choose, to provide amended plans within two weeks, that the council should re-notify and consider the plans within a further five weeks and that on the eighth week the parties should make contact with the Court via the E-Court or a call-over for a date for resumption. ___________________ K G Hoffman 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.