Land and Environment Court of New South Wales CITATION : Conventus Pty Limited v Leichhardt MC [2005] NSWLEC 127 APPLICANT Conventus Pty Limited PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11332 of 2004 CORAM: Bly C Development Application :- Alterations and additions to existing dwelling and the demolition of existing buildings and construction of a two storey dwelling - building location zone - bulk and scale - overshadowing - loss of privacy - car parking. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Development Control Plan 2000 Leichhardt Local Environmental Plan 2000 DATES OF HEARING: 23/03/2005 DATE OF JUDGMENT: 04/01/2005 APPLICANT Mr S Brockwell, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solciitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 1 April 2005 11332 of 2004 Conventus Pty Limited v Leichhardt Municipal Council JUDGMENT 1 This appeal relates to Development Application No D/2004/447 which is for: * Alterations and additions to the existing free standing single storey dwelling including a new first floor level at No 34 Smith Street, Rozelle. * The demolition of an existing garage and part demolition of the existing single storey dwelling and the construction of a new two storey dwelling incorporating a single car garage at No 36 Smith Street, Rozelle. 2 The property at No 34 Smith Street ("No 34") comprises a rectangular shaped site with an area of about 218 sq m. The adjoining No 36 Smith Street ("No 36") is also rectangular in shape with an area of about 221 sq m. 3 The appeal was dealt with as an on-site hearing. The locality 4 The locality in which the two properties ("the site") are located consists of a mixture of single storey cottages and two-storey terraces. The immediately adjacent houses on the western side of the street are small single storey workers cottages. There is a row of two-storey terrace houses opposite the site on the eastern side of Smith Street. Statutory provisions 5 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 ("LEP 2000"). In this zone the proposal is permitted with development consent. The site is also located within a conservation area. Relevantly applicable development standards in LEP 2000 are a maximum floor space ratio of 0.7:1 and minimum landscaped area of 40% of the site area. There was no dispute that both of these development standards are met by the proposal. 6 Clause 7(3) of LEP 2000 requires that certain matters be taken into consideration including relevantly the heritage conservation objectives in cl 15 (a) and (c) and the housing objectives in clause 17 (a). Clause 7(3) also importantly requires that consent must not be granted unless the consent authority is satisfied that the development is consistent with these relevant objectives. 7 In essence the conservation objectives in clause 15(a) and (c) require the protection, conservation and enhancement of conservation areas and the prevention of undesirable incremental change that might reduce the heritage significance of such areas. 8 The housing objectives in clause 17(a) relate to the provision of development standards to ensure that the density and landscaped areas of housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings works and landscaping. It also requires that the provisions of Leichhardt Development Control Plan 2000 ("DCP 2000") be taken into account especially in relation to desired future character. 9 DCP 2000 contains an extensive array of controls relating to residential development. Controls relevant to this application comprise building heights and setbacks and the Building Location Zone (" the BLZ") Advertising and council's decision 10 The application was advertised and submissions were received from residents of the adjoining properties at No 32 Smith Street ("No 32") and No 38 Smith Street ("No 38"). Matters of concern raised in those submissions include: - excessive bulk and scale and inappropriate positioning of the building, - overshadowing and loss of sunlight, - loss of privacy and excessive noise, 11 Following its consideration of an officer's report recommending refusal, the council refused the application on 17 February 2005 for reasons relating to non-compliance with the requirements of LEP 2000 and DCP 2000 including conservation and future character, setbacks and overshadowing The evidence 12 The appeal was conducted as an on-site hearing and expert town planning and urban design evidence was given by Mr. P Moffitt on behalf of the respondent and by Mr C Hill on behalf of the applicant. The two resident objectors Ms P Robertson of No 32 Smith Street and Mr. K. Canofski of No 38 Smith Street. were also given an opportunity to express their concerns during the Court's inspection of their properties. The issues 13 The tendered statement of issues contains five separate issues involving: 1. Bulk and scale 2. Car parking and impact on streetscape and conservation area. 3. Compliance with LEP objectives 4. Precedent 5. Interests of objectors, including solar access and privacy. 14 In relation to the aspect of privacy I am satisfied that these concerns have been resolved by conditioning the proposal in relation to sill heights and obscure glazing. Bulk and scale 15 B1.2 of DCP 2000 introduces the BLZ guidelines as being areas in which development can occur relative to adjoining properties. The associated diagram relies on a line connecting the nearest corners of the existing main buildings on adjoining allotments. In my view the BLZ requirements should be interpreted in a flexible manner and according to the guidelines for the purpose of the efficient use of the site and the protection of the amenity of neighbors, open space and landscape patterns. 16 I have decided that for the purposes of this application these two properties comprising the site which are to be effectively developed together, should be considered as one, especially as one of the two sites is vacant. A reasonable interpretation of the BLZ requirements indicates that the rearmost elements of the existing buildings on the properties at Nos 32 and 38 should be used as starting points to generate the BLZ. The rearmost element of No 32. was not utilised for this purpose by Mr Moffitt but I believe that it should because that element is clearly a habitable part of the building and is not an out-building or the like. The preliminary proposal for No 32 is too uncertain to be used for this purpose. This is the approach advocated by Mr Hill and will produce a BLZ extending further to the west than that utilized by Mr Moffitt. The footprint of the proposals largely comply with this BLZ. 17 However, I am satisfied that an examination of the footprints of buildings in the vicinity of the site, including No 30 Smith Street through to No 40 Smith Street indicates that the rearmost element of No 32 is somewhat of an aberration as is No 28 Smith St. and these buildings, whilst they should be taken into account, should not be relied upon. 18 In the circumstances I believe that a BLZ line extending approximately in line with the rear of the building at No 38 and parallel to the rear boundary of the sites is a fair and reasonable indication of an appropriate footprint, subject to meeting the objectives of the control. Whilst the proposal clearly exceeds this footprint I would not have rejected it simply on this basis. This is because the proposed provision of back yard private open space is essentially satisfactory, being similar to that at No 38. 19 According to Mr Moffitt the built form of the rear section of the proposed cottages is inconsistent with the traditional built form of cottages in the vicinity of the site, where the rear section is usually modest in scale. Occupying most of the width of the site at the rear the cottages would have a nontraditional built form and would not meet the consistency and simplicity requirement associated with the desired future character stipulated in DCP 2000 for this area. His greatest concern was that, notwithstanding any compliance with DCP 2000, the proposal in its two-storey form places excessive building bulk towards the rear of the site thus exacerbating the visual impact of bulk when viewed from the rear of the two immediately neighboring properties. 20 Mr. Hill did not accept that the bulk and scale of the proposal would have any adverse impact on the neighboring properties whose amenity would be maintained. In dealing side setbacks it was his opinion that the setbacks proposed were appropriate taking into account existing setbacks for nearby properties generally. 21 In principle I see no reason why the redevelopment of these two sites should not involve two-storey buildings however, given the predominant single-story character on this side of Smith Street the introduction of such buildings needs to be done with great care. In this context I give no weight to the interpretation of DCP 2000, which seems to indicate that three-storey development might be possible. 22 The side setback requirements which are included as guidelines in Part B of DCP 2000 effectively comprise a building envelope control requiring taller buildings to have greater setbacks so as to protect the amenity of adjoining properties. In terms of the side setback requirements there was no dispute that the proposed building at No 36 is in compliance and that the proposed building at No 34 is not. 23 Mr. Moffitt provided in his report a cross-section through the rear of the proposed building at No 34 that enables an understanding of the extent of the noncompliance with these side setback requirements. This cross-section reveals that the rearmost elements of the building are in the order of one metre or more, too close to the boundary. Alternatively the building is in the order of one metre or more too high. 24 The proposed building at No 36 will be essentially no higher than the existing building at No 38, having gutter lines at similar levels. However given that the site at No 36 is lower and the building footprint is to extend beyond the rear building line of No 38 and notwithstanding compliance with DCP 2000 I would have expected a more sensitive approach to the design of this part of the proposed building. 25 There were some concerns regarding the additional resulting overshadowing on No 32 from No 34. Whilst a more sensitive design might have reduced this impact and this can be taken into account I do not accept that in its determinative of two reasons. First No 32 is to the south of No 34 and given similar sized buildings some overshadowing is inevitable. Second a building complying with the building setback envelope requirement of DCP 2000 would have a similar impact. 26 However the bulk and scale impacts on the amenity of No 32 are not inevitable and could have been mitigated by a more compliant design particularly in relation to the building setback envelope. I am required to give proper consideration to the provisions of DCP 2000 and in doing so I agree with Mr Moffitt and indeed Miss Robertson that the bulk and scale of the rear part of building at No 34 would be excessive. I accept that it would be conspicuous when viewed from the existing courtyard over the rear part of that building at No 32. It would be even more conspicuous and dominating if Miss Roberts were to proceed with her proposed redevelopment, which will logically place the courtyard on the north side. 27 Whilst I can see how the stepping in of the two proposed cottages at the side and towards their centre provides design benefits that I would otherwise accept, it is these elements of the design that have tended to push some building bulk towards the rear with the unacceptable consequences that I have already described. Car parking 28 The proposed dwelling at No 34 is to have an incorporated single car garage at ground level with access off Smith Street and utilizing the existing footpath crossover. 29 Two issues arise in relation to this proposed garage: whether it and the access thereto would be satisfactory in the streetscape and the conservation area; and whether any off-street car parking should be provided at all in the light of the applicable car parking provisions in DCP 2000. 30 In relation to the streetscape issue Mr. Moffitt explained that very few sites have on-site car parking with footpath crossings. Garages in the front of houses are disruptive elements and are uncharacteristic of existing workers cottages in the street and indeed the conservation area. Footpath and gutter crossings are also uncharacteristic of the streetscape and detract from the heritage character of the conservation area. Mr. Hill disagreed, contending that the garage doors and the front the gates had been designed to blend into the design of the dwellings and would be sympathetic in the streetscape. 31 In relation to the vehicle crossovers the applicant has agreed to a condition, which would require a continuation of the existing bitumen footpath and a stone kerb to match the existing. I agree that this arrangement would be satisfactory in the streetscape. As for the appearance of the proposed garage door at No 34 Smith Street I am satisfied that the garage door design and the picket gates are appropriately responsive in the streetscape. The fact that the gates and the garage door will be open from time to time is not a matter of critical concern. 32 Clause B1.3 Car Parking of DCP 2000 provides that: No on-site parking is allowed for single dwellings on one allotment where vehicular crossings disrupt the continuity of the footpath and verges and reduce on-street parking capacity. 33 No 36 has an existing garage and vehicular crossover. I agree that weight can be given to the existence of this garage and crossover and conclude that even though the removal of the crossover would benefit the existing on-street parking arrangement, its retention will not reduce the existing on-street parking capacity. I would not refuse this application on this basis. Conclusion 34 Finally, in relation to Cl 7(3) of LEP 2000 I am satisfied that the proposed development is consistent with the relevant conservation objectives, accepting as I do that the proposal will sit comfortably in the streetscape and will not reduce the heritage significance of this area. 35 As for the housing objectives I am also satisfied that the proposed development would be consistent in terms of density and landscaped areas. Also the houses would be generally complimentary to and compatible with the style, orientation and pattern of surrounding development 36 However I am sufficiently concerned at the bulk and scale of the rearmost aspect of the two houses and their impact on the neighbours that the application should be refused. Orders 37 For the reasons given above I have decided that the development application should not be approved. The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development Application No D/2004/447 for: o Alterations and additions to the existing free standing single storey dwelling including a new first floor level at 34 Smith Street, Rozelle. o The demolition of an existing garage and part demolition of the existing single storey dwelling and the construction of a new two storey dwelling incorporating a single car garage at 36 Smith Street, Rozelle, is determined by the refusal of development consent. 3. Exhibit A is retained. 4. There is no order as to costs. _______________ T A Bly Commissioner of the Court Rjs/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.