Emerald Logic Pty Ltd v Leichhardt Council [2004] NSWLEC 426

Land and Environment Court of New South Wales

CITATION : Emerald Logic Pty Ltd v Leichhardt Council [2004] NSWLEC 426 APPLICANT Emerald Logic Pty Ltd PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 11357 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Alterations and additions to existing dwelling SEPP 1 Objection - Floor Space Ratio and Landscape Area LEGISLATION CITED: State Environmental Planning Policy No 1 Leichhardt Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 13/02/2004, 12/04/2004 and 05/08/2004 DATE OF JUDGMENT: 09/17/2004

APPLICANT

Mr A Hudson Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT

Ms J Walsh Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

17 September 2004

11357 of 2003 Emerald Logic Pty Ltd v Leichhardt Municipal Council

JUDGMENT 1 Commissioner Tuor: This is an appeal against the refusal by Leichhardt Municipal Council (council) of a development application (D/2002/623) for alterations and additions to an existing house and construction of a garage at 7A Johnston Street, Balmain East. The site and its context 2 The site is located on the western side of Johnston Street. It is irregular in shape with a narrow frontage to Johnston Street of 7.62m, a rear boundary of 12.25m and a depth of about 32m. The site has a substantial fall from the rear western boundary to the street. There is an existing right of way over part of the southern side boundary that provides access to the properties at the rear. The site, including the right of way, has an area of 295.3 sqm. 3 A 1970s two-storey house is located at the rear of the site. This includes a garage (now used as storage). The front of the site is extensively paved and includes a driveway and hardstand area with planting along the northern and southern side. There is little landscaping on the rest of the site. 4 The site adjoins six properties. To the north, No 7 is a single storey cottage. To the south, No 9 Johnston Street is a two-storey house with an attic and the ground floor is used as a doctor's surgery. Nos. 9A and 9B are recent three storey houses that are accessed from the right of way. Other development in the street is one to two storey houses of different styles and sizes, generally built close to the street frontage. Background and the proposal 5 The development application was lodged on 5 September 2002. Council notified the application and subsequent amended plans to adjoining residents and 9 objections were received. The main concerns related to overshadowing, impact on the streetscape, bulk resulting from non-compliance with the floor space ratio (FSR) and wall height control and insufficient landscaped area. Council staff recommended approval of the application. Council refused the application on 14 October 2003. 6 On 13 February 2004, I delivered preliminary findings and amended plans were subsequently prepared and residents consulted. The amended plans lower the proposal and reduce the area of the garage. Further information about FSR and landscaped area was not provided, however, these have not changed to any significant degree and I have used the figures in the agreed statement of the planners in the assessment of the State Environmental Planning Policy No 1 (SEPP 1) objection and the application. 7 The proposal is for internal alterations to the exiting building including the conversion of the existing garage to a rumpus room, alterations and additions to the roof to provide a studio, ensuite and terrace with a lantern style roof light and the construction of a new two car garage with garden storage above, at the street alignment. Planning Framework 8 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (LEP2000). The proposal is permissible with consent. Under LEP 2000 the maximum floor space ratio (FSR) is 0.7:1 (cl19(2)), the landscaped area requirement is 40% of the site area (cl 19(3)(a)) of which 25% must be on natural ground (cl19(3)(b)). The proposal does not comply with the FSR and landscape area control and the applicant lodged objections under SEPP 1. This policy allows development standards to be varied provided their application is either unnecessary or unreasonable, 9 Under LEP 2000, the site is within the Balmain Conservation Area and is in the vicinity of a number of heritage items. Under cl 16 the impact of the development on the heritage significance of heritage items in the vicinity and the conservation area must be considered. 10 Draft Leichhardt LEP 2000 - Amendment No 11 was draft at the time of the hearing but was subsequently gazetted on 2 April 2004. The Parties made submissions after the gazettal of the LEP amendment and further SEPP 1 objections were lodged. References in this Judgment to LEP 2000 include this amendment. 11 The site is within the East Balmain Distinctive Neighbourhood in Leichhardt Development Control Plan 2000 (DCP 2000). Relevantly, the existing character of the area south of Darling Street is described as: The part of the neighbourhood south of Darling Street and west of Johnson Street, is notably more modest. The narrow dense built form includes many timber workers cottages with zero to 1m setbacks and with pitched or gable roofs. The Issues 12 The Statement of Issues before the Court contained 9 issues. These can be summarised into the key issues of whether the SEPP 1 objections in relation to FSR and landscaped area are well founded. In particular, this issue related to the construction of the new garage and garden store, the raised landscape area and retaining walls along the side boundaries. The impact of the garage and garden store on the streetscape and heritage significance of the conservation area was also an issue between the parties. The residents were concerned about the overshadowing and privacy impacts of the proposal. 13 The Court heard evidence from the following experts: · For the applicant Mr S Barwick, town planner Mr M Siu, landscape architect Mr S Davies, heritage consultant Mr A Solomon, architect for the proposal · For the Council Ms D Laidlaw, town planner 14 A memo from Mr D Paton, Team Leader Drainage and Development was tendered as evidence but he was not required for cross examination. 15 The Court had the advantage of a site inspection and heard from a number of residents.