Land and Environment Court of New South Wales CITATION : IUS Pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 319 APPLICANT IUS Pty Ltd PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 10254 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- 2 town houses - floor space ratio - sympathy of design for existing and future character of locality Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Leichhardt Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 15/06/2004 EX TEMPORE 06/15/2004 JUDGMENT DATE : APPLICANT Ms S Duggan, barrister SOLICITORS Stone and Partners LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 15 June 2004 10254 of 2004 IUS Pty Ltd v Leichhardt Municipal Council JUDGMENT 1 This was a class 1 appeal No. 10254 of 2004 between IUS Pty Ltd and Leichhardt Municipal Council in regard to deemed refusal of D/2003/783 for the demolition of an existing house No. 58 Mackenzie Street, Leichhardt, and its replacement with 2x2 storey attached town houses with basement parking for four cars. 2 The issues in the case were summarised into two main matters. First was the State Environmental Planning Policy No. 1 objection against the exceedance of the statutory floor space ratio that was set at 0.5:1. The proposal was either 0.538:1 or 0.547:1 according to the applicant or respondent respectively. 3 The second issue was whether or not the proposal would be sympathetic to the existing and future character of the Piperston Distinctive Neighbourhood under the Leichhardt Local Environmental Plan 2000 as amended to 2 April 2004. 4 The latter gazettal was important as it specifically required under cl 17(a) the assessment of any development application to take account of the suite of controls under Development Control Plan 2000. 5 In regard to achieving the desired future character the respondent's case for not achieving that character related to detailed provisions in the Development Control Plan which were listed in the Issues as follows:- Aims and Objectives 1. Whether the proposal satisfies Clause 7(3) Land Use Objectives of LEP 2000. 2. Whether the proposal satisfies the requirements of Clause 13 - General Objectives of LEP 2000, in particular, Clauses 13 (1) (b) and 13(2)(a),(b), (c) and (d). Particulars The proposed development will have a detrimental effect on the existing streetscape and does not promote good design. Housing 3. Whether the proposal satisfies the requirements of Clause 17 – Housing Objectives of LEP 2000, in particular, Clause 17 (a) and (b). Floor Space Ratio 4. Whether the proposal is unacceptable having regard to non-compliance with the floor space ratio controls in Clause 19 (2) of the Leichhardt Local Environmental Plan 2000 ("LEP 2000"). 5. Whether the submitted State Environmental Planning Policy No 1 – Development Standards ("SEPP 1") Objection in respect to Clause 19 (2) of LEP 2000 should be supported and upheld. 6. Whether the SEPP 1 objection refers to the correct objective in LEP 2000 to rationalise non-compliance with clause 19(2) of LEP 2000. Particulars: LEP 2000 was amended vide Amendment No. 11 published in the Government Gazette No. 69 dated 2 April 2000 which amends the underlying floor space objectives, which objectives are not referred to in the SEPP 1 objection prepared by Mr Goodyer in his statement of environmental effects at page 28. There are no savings provisions which apply to amendment No. 11. Height, Bulk and Scale and Streetscape Character 7. Whether the proposed development is compatible with the scale, form, design and character of existing development in the locality. 8. The proposed development will have an unacceptable height, bulk and scale which will result in a degradation of the streetscape character. Particulars: Non-compliance with: § Clause 15 (c) of LEP 2000; § Objectives and requirements of Part A 4.0 of the DCP – Urban Form and Design § Part A 10.2 of the DCP – Leichhardt Suburb Profile of DCP 2000, particularly with respect to Clause 10.2.3 – Piperston Distinctive Neighbourhood; § Clauses B1.2, B1.3 B1.5, B1.6 and 1.7 of the DCP, particularly with regard to the building envelope control of 3.6 metres for the Piperston character precinct, and the underlying objectives of that control to establish appropriate built form ie 'single storey or low 2 storey utilising the roof space'. The proposal is for a full two storey height dwelling plus partly expressed basement and is inconsistent in terms of its fundamental form with Part B1.2's requirements. Sufficient information 9. Whether the applicant has submitted sufficient information to allow the consent authority to assess the structural engineering works proposed to be carried out to the party wall adjoining No. 56 Mackenzie Street, Leichhardt. 10. Whether consent of the owner of No. 56 Mackenzie Street is required due to the works proposed to the party wall. 11. Whether sufficient details have been provided regarding rights of access to parking arrangements with the subdivision application. 6 In regard to Issues 9, 10 and 11 the parties indicated that they could be dealt with by conditions of consent. 7 Attending at the on-site hearing were: § Mr Gary Green, advocate for the respondent from Pike Pike and Fenwick, § Ms Jacinta Reid from Pike Pike and Fenwick, § Ms Deborah Laidlaw from Laidlow Mason Partners, town planners and § Anna Souden, representing Leichhardt Municipal Council. 8 For the applicant were: § Ms Sandra Duggan, advocate § Mr Michael Young of Stone and Partners, § Mr Geoff Goodyer of Symons Goodyer Town Planners, § Ms Nada Widdowson, developer/owner. 9 Miss Laidlaw and Mr Goodyer gave evidence. Of note in the evidence was that there were no objectors to the proposal and three letters from neighbours giving unqualified support. Also there were no amenity impacts pressed by the respondent as a consequence of any non-compliance with the controls except in respect of how the proposal was not complimentary to the future character. 10 Of interest in the desired future character statement in Development Control Plan 2000 was that it sought to: "maintain the character of the area by keeping development complementary in architectural style, form and materials; maintain and enhance the predominant scale and character of dwellings in this precinct, consisting of mostly single storey Victorian and Federation-style dwellings, with more significant development in appropriate areas and allow for contemporary development, which is complementary to the existing streetscape". 11 The existing character statement said in part : * The Piperston Distinctive Neighbourhood displays a mixed variety of developments following an irregular pattern of mostly wide streets intermixed with narrow laneways. * North/south streets are not as predominant as in other Neighbourhoods, but generally follow the contours. * The average street comprises detached or semi-detached cottages or bungalows, interspersed by two-storey terraces. While it is difficult to identify several main architectural forms in the area, there is a profusion of bungalow and cottage style developments, terraced houses, three storey flat buildings as well random groupings of workers' cottages. * Many alterations and additions to existing properties have been undertaken with respect to adjoining development, a great deal have been developed without regard to the streetscape and local building form. 12 These last words are relevant to the site, in that opposite in Mackenzie Street is the side wall of a house fronting Annersley Street that is built on the Mackenzie Street boundary, and the continuation of the side wall is a galvanised iron fence. Beyond it eastwards is a high blank wall of another two storey house also fronting Annersley Street. 13 On the corner of Annersley and Mackenzie Streets just south of the site are three two storey Victorian buildings also with zero set back to both streets. 14 Just north of the site is a two storey 1970's building also with zero setback to Mackenzie Street on the corner of Moore Street. 15 Two house lots north of the site is an Art Deco substation. 16 Beside the site on the north is an interwar bungalow with a bay window on one side and a verandah on the other. And, on the south side of the proposal is No. 56, it is a single storey Victorian cottage with a front verandah and a steep roof sloping up from the street façade. 17 Mackenzie Street has very mixed styles of buildings of various ages, either unchanged or heavily added to or altered. 18 Annersley Street, by contrast, is a wider street than Mackenzie and has a much more consistent single storey character; although there are two storey Victorian terraces and two storey more recent houses. But, it is predominantly single storey, and due to having rear service lanes there are few garages or vehicle crossings. 19 In Mackenzie Street several houses including the subject site have a driveway and no rear access. The proposal has adopted a design that seeks to address the streetscape, and the contemporary need for on-site parking, and two storey living levels to achieve reasonable internal space. 20 The design sets the proposed town houses back behind forecourts which have a front set back alignment to match its neighbours. At that set back, a wall with pergolas and shuttered openings screen the courtyards from the street. The pergola and the wall generally line up with the front verandah and front façade respectively of No. 56 Mackenzie Street. The forecourt wall then steps back in two other phases on the north side past the front set back of No. 60. The top of the wall is at about the eave height of the front wall of No. 56. 21 The eaves of the second storey of the townhouses commences at about the same height above ground as the ridge of the steep roof of No. 56, but a couple of metres further back from the street, so that the front of the townhouse is recessive and not dominant in the streetscape. The front walls of the courtyards are what takes the eye from the street view. 22 Mr Goodyer believes this design complies with Development Control Plan Envelope Controls, and the height control and due to the zero amenity impacts on neighbours, the side setback control could be relaxed in accordance with the relevant provisions. 23 Ms Laidlaw did not agree with this and said that the development control plan should be interpreted more strictly, and the envelope be measured from the façade of the townhouse and not the front wall of the courtyard. This was crucial to the assessment as from that flowed most of the overall compliances or not, with detailed provisions. 24 After hearing evidence and submissions the Court has concluded that the words of the Development Control Plan are that the envelope commences at the front wall of the building and the front wall of the courtyard is directly above the wall of the basement carpark, and is in fact the front wall of the building. 25 In looking at the existing and future character of the neighbourhood, the Court has given weight to those parts of the character statements that apply to Mackenzie Street and buildings adjacent to the proposal. It is a good architectural solution in that setting. It would not be such a good solution for instance in Annersley Street, but the character statement allows for diversity in the character of the neighbourhood so long as each case fits into its setting. 26 The Court is satisfied the principle objective of the statute and controls has been achieved. 27 In regard to the floor space ratio the amount of exceedance is about 6 sq m approximately, and it is the equivalent of a garbage bin store and services meter recess that is partly at basement level. The expert planners agreed that the objective of the floor space ratio statute and thereby cll 19(2) and (17)(a) of the LEP is: To provide development standards to ensure that the density and landscaped areas of new housing are complementary to and compatible with existing buildings and landscaping and take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve desired future character. 28 The Court has concluded that the objectives of the suite of controls has been met and the allowance of a small excedance of the floor space ratio has no impacts that would frustrate the objectives of the Environmental Planning and Assessment Act 1979 and has reached the further conclusion that compliance with the standard in this case is unreasonable and therefore the State Environmental Panning Policy No. 1 objection to the floor space ratio standard is allowed. There being no other matters sufficient for refusal, the orders of the Court are: 1. The appeal is upheld. 2. Deferred development consent is granted to demolition of existing house and erection of two 2-storey attached townhouses with basement carparking and subdivision, as shown on drawings in Exhibits A, BB, C, D, , and D of this appeal as listed in Annexure "A" and all as amended by and in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits A, B, C, D, E, F, G, 2, 5 and 6. ______________________ 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.