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. SEPP 1 Objection – Floor Space Ratio 16 The planners agreed that the floor space of the existing building was 250 sqm and the proposal was 315sqm, an increase of 65sqm. However, they held different opinions on the FSR of the building. This difference was based on whether the right of way should be included as site area for the purpose of calculating the FSR of the proposal. Regardless of whether this is included or excluded, the existing building and the proposal both exceed the FSR of 0.7:1 permissible under LEP 2000. If the right of way is excluded, the FSR of the existing building is 1.1:1 and the FSR of the proposal is 1.35:1. 17 The objectives of the FSR standard are not specifically stated in LEP 2000, other than the Objectives for Housing at cl 17 which relevantly state: (a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary 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. 18 The experts agreed that the purpose of the FSR standard is generally to control bulk and scale and the impacts of bulk and scale, including privacy and overshadowing. 19 Mr Barwick submitted a SEPP 1 objection which concluded that the relevant objectives are satisfied by: The proposed FSR resulting in a single dwelling that is compatible with the height bulk and scale of neighbouring existing development that would not result I any adverse impacts upon the amenity enjoyed by these dwellings; Despite numerical non compliance to landscaped area the development results in a nett increase in soft landscaping opportunities on-site; The orientation and pattern of development remains unchanged by the proposal; The new built form proposes a more sympathetic relationship to the streetscape and a more characteristic building form than the existing dwelling; The development does not alter the existing lot size or pattern of subdivision; and The development is for alterations and additions to an existing dwelling to improve the visual appearance of the dwelling, its relationship to the streetscape and the amenity and function of the accommodation provided consistent with the diversity of housing objectives. The development is considered to achieve the desired future character of the East Balmain distinctive neighbourhood by: Maintaining the patterns of architectural style in Johnston Street; Maintaining view lines from adjoining development; Maintaining the predominant scale of development at two storeys; Utilising architectural styles, proportioning and materials characteristic of the locality without being copies; Providing no additional driveways; As outlined within the statement of Mr S Davies the proposal is sympathetic to the conservation values of the locality; Opportunities for the provision of canopy landscaping are introduced onto the site; No escarpment is effected; No adverse overshadowing or view loss to adjoining development results. 20 In Ms Laidlaw's opinion the proposal would have an unacceptable bulk, particularly if those features of the building that add to bulk but which are not counted as FSR are taken into account. She was concerned about the raised garden bed over the garage combined with the boundary retaining walls impact on the adjoining properties. In her opinion, the bulk of the proposal was inconsistent in scale with neighbouring properties and would impact on privacy. 21 Ms Laidlaw considered that the garage and garden store had a negative impact on the streetscape. She stated that: The negative impact of the garage represents the type of incremental erosion of the quality of the conservation area that the LEP, including the recent draft amendments to the LEP, seek to discourage. An 'infill" building, if it were to have any benefit to the streetscape at all, would logically be an appropriate and sensitive infill. This proposal, conversely, brings the impact of the garage from the rear of the site, where it is relatively recessive, to the front of the site, where it is visually prominent and removes the landscape contribution currently provided by the front setback of the dwelling house. 22 Mr Davies held the contrary opinion that: The subject site is not typical of the area and the period and design of the dwelling is not sympathetic due to the large setback from the street and the car parking close to the street alignment. The proposal in this regard proposes to fill the gap and more closely aligns to the typical pattern of buildings in Johnson Street. 23 Mr Davies considered that the proposal achieved the principles in the Heritage Council Guidelines for infill development. In particular, the solid form to the street alignment responded to the character of the area and was of an appropriate scale in relation to surrounding development. While contemporary in materials and design, its massing and solid to void ratio are traditional and compatible with other buildings in the street. Mr Davies stated that the proposal benefits from the additional height of the store level to provide an appropriate scale. 24 I agree that the existing house does not contribute to the streetscape. It is set back from the street when other houses are generally built to the street alignment. It is a raised above street level and consequently appears higher than other buildings. To provide access to the garage the front of the site is mainly driveway. Overall the house has a negative impact. The appearance of the house could be improved by cosmetic changes and through landscaping of the front garden. However, if the garage is to the retained in its current location the front garden would remain as driveway and landscaping that could improve the relationship of the house to the street would be difficult to achieve. 25 The increase in FSR must be considered in the context of the existing house and of other houses in the street. Most of the increase in FSR is as a result of the proposed changes to the existing house. These changes improve the appearance of the house and do not add significantly to its size. The additional accommodation on the upper level is generally within the existing roof and when viewed from the street and adjoining properties, particularly 9A and 9B, will not be perceived as increasing the overall bulk of the existing house and will generally maintain the status quo of the building and its relationship to other buildings. 26 The changes to the existing house will also not impact on the privacy or solar access of adjoining residents with the exception of the first-floor balcony. The impact of this balcony is mitigated by a proposed condition of consent that reduces it in size. 27 The new garage and garden store will add to the bulk of the development by filling in the gap in the streetscape. The landscaping over part of the garage and the retaining walls will also add to its bulk. Most of this additional construction is not included as floor space and not included in FSR and therefore technically not part of the SEPP 1 objection. However, it is valid to consider the bulk of the overall development in considering the SEPP 1 objection. 28 I accept Mr Davies evidence that the garage and garden store is acceptable infill development. The new structure on the street alignment fills in the gap in the streetscape in has a similar setback to other buildings in the street, which are built to the street alignment. It is of a height and form that is compatible with the adjoining buildings and is designed not to appear as simply a garage but as an infill building, which contains a garage. Placing the garage on the street enables the existing driveway to be removed and the front of the house to be landscaped. The raised level of the landscaping and the retaining walls are acceptable as the masonry component is consistent with the height of a side boundary fence with landscaping above. The bulk of the garage, garden store and retaining walls have an acceptable impact on adjoining properties and on the streetscape. 29 I agree with Mr Davies that the increased height that results from the garden store is acceptable. If this were to be deleted, as proposed by condition 4, the building would appear as a garage structure and would be too low in relation to its surrounding buildings. I have therefore deleted this condition. 30 The increase in FSR results mainly from changes to the existing building, which do not markedly increase its bulk. The new garage, garden store and retaining walls do increase the amount of development on the site. These structures are mostly not included as FSR and are an acceptable addition in the streetscape. For the reasons outlined above I therefore accept that the SEPP 1 objection is well founded. Landscaped Area 31 The experts agreed that if the right of way were excluded from site area, the landscaped area required under cl 19(3) would be 93.42sqm. The existing development has 40.25sqm of landscaped area that will marginally increase to 42sqm. The amended plans increase the proportion of this that will be deep soil planting by 13sqm. 32 The objectives of the landscape standard are not stated other than the Objectives for Housing at cl17 which as well as Objective (a) relevantly include: (b) to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents. 33 In Ms Laidlaw's opinion the objectives of the landscape standard are for open space to provide spatial separation between development, to provide for a softening/amelioration of built form and for the amenity of future occupants. 34 Although expressed differently, Mr Barwick had similar objectives but included the added objective of stormwater permeation, reduction in hard surfaces and opportunities for deep soil planting. 35 Mr Barwick submitted a SEPP 1 objection which concluded that the relevant objectives are satisfied by: The landscaped area that results would be a nett increase in landscaping opportunities on-site from the current configuration. This is achieved by relocating the car parking to the street front and removing the existing approved hard surfaced driveways; Northerly orientated level open space is provided which is not currently provided onsite; The orientation and pattern of development remains unchanged by the proposal; The additional built form proposes a more sympathetic relationship to the streetscape and characteristic building forms than the existing dwelling. 36 Mr Barwick considered that the development and the variation to the landscaping standard achieved the desired future character of the East Balmain Distinctive Neighbourhood for the same reasons as the variation to the FSR standard, which are stated above. 37 As discussed above, most of the front setback area is now driveway. This will be removed by the relocation of the garage and the area converted to a landscaped courtyard, some of which will be over the garage and will not provide deep soil planting. The remainder of the courtyard will be on or above existing ground level to form a level surface and will be deep soil. The retaining walls along the boundary have screen planting for privacy and to soften their appearance. The removal of the driveway and the construction of the garage will not result in any significant increase in landscape area but, is acceptable as it is consistent with other buildings, which are built to the street alignment with no landscaped setback. The SEPP 1 objection is therefore well founded. Residential Amenity 38 The main impact of the proposal will be to the adjoining properties to the south (No 9) and the north (No 7). Ms Laidlaw's main concern was the impact on these properties from the bulk of the garage and the raised courtyard and its retaining walls, which has been discussed above. The proposal will reduce solar access to the ground floor window of No 9, but not to any significant extent and this room is used as a Doctor's surgery. 39 The enclosure of the existing first floor balcony will improve privacy to the neighbours to the north. I accept council's condition, which requires the proposed first floor balcony to be setback a minimum of 2m from both side boundaries to mitigate any privacy impact, both visual or aural. Privacy impacts from the raised courtyard are acceptable as planter boxes separate this area from the right of way adjoining No 9 and the side path of No 7. The dining room window of No 7 faces the retaining wall but even without landscaping there is unlikely to be a privacy impact due to the change in level. The southern windows of the sunroom of No 7 will look onto the garage but this room has other windows to the east and the north and will still provide amenity for the occupant. Conditions 40 The applicant did not agree to the following conditions: Condition 1 This condition requires greater set back of the level 1 terrace and has been included for the reasons given above. Condition 4 This condition requires deletion of the garden store and has been deleted for the reasons given above. New Condition 2 This condition requires the garage to have a clear internal length of 11.7 m to enable stack parking for two cars to comply with AS2890.1-1993. The proposed garage arrangement is for two cars to be parked next to each other with a ramped access from the street. It is not intended that a car should be parked on the ramp in a stacked arrangement and the provision of three car parking spaces is not proposed or warranted. Mr Barwick's evidence is that the proposal provides sufficient width and length for two cars to be parked side by side with sufficient room to manoeuvre. The reduction in length in the amended plans from 12m to 10m provides greater deep soil landscaped area and is supported. The condition is therefore deleted. Orders 1. The appeal is upheld 2. Development Application No D/2002/623 for alterations and additions to an existing house and construction of a new garage at 7A Johnston Street, East Balmain, is determined by the grant of development consent subject to the conditions in Annexure "A". 3. The exhibits, except exhibits 4, 6, E, K and L may be returned. _____________________ Annelise Tuor Commissioner of the Court 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.