Land and Environment Court of New South Wales CITATION : Accetta v Leichhardt Municipal Council [2006] NSWLEC 728 APPLICANT Patrick Accetta PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11454 of 2005 CORAM: Bly C KEY ISSUES: Development Consent :- Extension of a dwelling, lanscaped area, private open space, car parking, adverse amenity impacts on neighbours Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No. 1 Leichhardt Development Control Plan DATES OF HEARING: 27/10/2006, 30-31/10/2006 EX TEMPORE JUDGMENT DATE : 10/31/2006 APPLICANT Mr A Pickles, barrister Instructed by Ms S Pagano, solicitor Of: Carbone Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms J Reid, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 31 October 2006 11454 of 2005 Patrick Accetta v Leichhardt Municipal Council JUDGMENT 1 At 35 Albert Street, Leichhardt, is a single-storey building comprising a pair of attached dwellings with a detached garage at the rear. The building was originally constructed as a single dwelling which has more recently been extended essentially in accordance with a development consent granted by the council in early 1969. This extension has now been converted creating a second dwelling but no consent has been granted for this conversion or for its use as two dwellings. 2 The built form of the building is essentially in accordance with the consent with two exceptions: a dividing wall that closes off the wall between the original house and the extension and an additional kitchen in the extension. 3 It was initially thought that the extension consent included a rear garage with a pitched roof and that the existing accessible rooftop patio was in contravention of that consent. However this matter is now unclear and one cannot be certain as to whether the rooftop patio or indeed the garage itself is in contravention. 4 The applicant has now applied for development consent to regularise the existing use of the building for the two existing dwellings plus a number of minor works including privacy screens and landscaping. 5 The site being Lot 19, Section 3 DP 2829 has a frontage of 6 m to Albert Street and 46 m to National Street with an area of 272 sq m. Existing development in the surrounding area mainly comprises single-storey detached dwellings of a similar scale to the subject property. 6 The site is situated in the residential zone under Leichhardt Local Environmental Plan 2000 ("the LEP") and in this zone the proposed development is permissible with development consent. It is also situated in a conservation area. 7 Relatively applicable development standards in cl 19 of the LEP comprise floor space ratio and landscaped area. The maximum floor space ratio is 0.5:1. The minimum landscaped area is 40% of the site area and 25 % of this area is to be provided as natural or unpaved land that is appropriate for substantial deep planting. Also applicable is the Leichhardt Development Control Plan ("the DCP") which, relevant to this application, contains car parking and private open space requirements. 8 The application was advertised and two objections were received from the properties at 4 and 8 National Street opposite the site. Concerns expressed by these neighbours include overlooking and noise from the rear garage roof patio, excessive floor space ratio and insufficient landscaped area, increased demand for car parking and inappropriate precedent, there being no other dual occupancy developments nearby. 9 Following its consideration of a council officer's report recommending refusal the application was refused by notice of determination dated 12 July 2005 for twelve reasons including non-compliance with the applicable objectives of the LEP, failure to meet the landscaped area and private open space requirements of the LEP and the DCP and the failure to meet the requirements of the DCP in relation to car parking. 10 Expert town planning evidence was given by the Court-appointed expert Mr A Smith and on behalf of the applicant by Mr B Threlfo. They also prepared a joint report. Having considered all of the evidence and having taken a view of the site and its environs I have decided that the principal issues in this case are whether the conversion of an existing approved building from a single dwelling into two dwellings would be inconsistent with the planning controls and whether it would have any adverse amenity impacts on neighbours. 11 As indicated above the LEP contains development standards applicable to the site in relation to floor space ratio and landscaped area. The floor space ratio of the existing building at 0.64:1 exceeds the maximum of 0.5:1 in the development standard in cl 19. The proposal will not change this exceedence which has resulted from the more recent controls in the LEP being applied to a building previously approved by the council. 12 The issue that thus arises is whether the conversion of an existing building from one dwelling into two dwellings becomes subject to the requirements of cl 19. Clause 19(2) provides that consent must not be granted to the carrying out of residential development if it will result in the floor space ratio exceeding that in the table to the clause. Hence the question that must be asked is, "Does this proposal comprise residential development that will result in the floor space ratio exceeding 0.5:1?" In my opinion the proposal will not be responsible for the existing exceedence and hence there is no infringement of this clause. 13 The housing objectives in cl 17 of the LEP include objective (a) which provides for the introduction of development standards that 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 take into the account the suite of controls in the DCP to achieve desired character. 14 Plainly the use of the building for two dwellings rather than one will make little difference to the character of the locality but more importantly the objective is about new housing and in this regard I agree with the submissions made on behalf of the applicant that this development does not comprise new housing. Instead it involves the conversion of existing housing without any increase in floor space. It is also plain that the density of the development in terms of number of dwellings is being increased by this proposal, however this is not the form of density referred to in cl 19(2). Instead the clause simply deals with floor space and because there is to be no increase in floor space I accept that there will be no relevant change to the building that could possibly have an adverse impact on the style, orientation and pattern of surrounding buildings work and landscaping. 15 Should I be wrong in relation to the floor space ratio development standard insofar as it applies to this development I would have accepted the objection under State Environmental Planning Policy No. 1 taking also into account the supporting evidence of Mr Threlfo. 16 In relation to the landscaped area requirement in cl 19(3) I note that this requirement applies to residential development and applying the definition of development under the Environmental Planning and Assessment Act 1979 residential development includes residential use. As a consequence the standard is applicable. The existing development exhibits a significant non-compliance with both the 40 per cent landscaped area and the twenty-five per cent natural landscaped area requirements. The proposal will reduce these non-compliances by the introduction of planter boxes and additional natural landscaped areas but non-compliances will nevertheless remain. In these circumstances I accept the SEPP 1 objection again taking into account the additional evidence of Mr Threlfo and bearing in mind the objective in cl 17(a) which is about the character of the area. In this context I also take into account the particular provisions of the DCP in relation to future character. The fact that the proposal will not change the form of the building but will improve the landscaped area arrangement albeit only slightly, provides further support for the SEPP 1 objection. I have also taken into account objective (b) which requires landscaped areas that are suitable for substantial tree planting of a size suitable for the use and enjoyment of residents. Provision has now been made for the planting of a medium-sized tree on the site which is a reasonable response taking into account the size of the site and the constraint imposed by the existing approved building. In these circumstances I also accept that the principle in s B(1.1) of the DCP regarding the integration of new housing into the neighbourhood would not be infringed notwithstanding that this is not new housing. 17 Clause B(3.2) of the DCP requires that private open spaces should be designed to meet the requirements for recreation, service and storage needs as well as solar access. They should be well integrated with living areas. Such private open space should connect directly to dwellings at ground level and have a minimum area of 16 sq m with a minimum dimension of 3 m. Whilst there is no specific requirement that each dwelling should have its own private open space I nevertheless accept that this is a reasonable interpretation of the private open space provisions. 18 The available private open space including the garage roof patio and including the landscaped areas has an area of about 50 sq m. It includes garbage storage areas and clothes drying facilities. Of concern to the council and to Mr Smith is the fact that this open space is common open space to both dwellings and there is no actual private open space. Also of concern in this context is the fact that this common open space provides the principle access to the second dwelling and that such access is in the immediate vicinity of the clothes drying facilities. Also of concern is the fact that whilst the rear most dwelling has direct access onto the open space the other dwelling obtains access via a relatively narrow pathway beside the second dwelling. Whilst this is an unusual arrangement it is clearly working as both dwellings are occupied. 19 The objectives in cl 17 of the LEP includes the provision of a diverse range of housing in terms of size, type, form, layout, location, affordability and adaptability to meet the varied needs of the community. Whilst I do not accept that housing should generally be provided without private open space I am satisfied and taking into account that subdivision of the two dwellings is not proposed and the circumstances of this case that this arrangement is satisfactory and should not require the refusal of the application. 20 The final issue involves the provision of off-street car parking. The existing development has a single garage at the rear and the town planners agreed that the proposal represents a deficiency based on the requirements of the DCP of 0.5 car spaces that needs to be rounded up to one car space. Whilst Pt B of the DCP only applies to new housing it is in my opinion reasonable to apply the car parking standards which plainly apply on a per dwelling basis. But taking into account that the DCP provides that additional parking may not be required if the redevelopment does not result in any increased floor space and taking also into account that there is a sufficiency of on-street car parking spaces in the locality to accommodate the additional demand and that this is a locality where many houses have no off-street parking I do not find the non-compliance to be unsatisfactory. 21 Finally some concerns were expressed that the conversion of one dwelling into two dwellings would indicate an increase in intensity of use that would have adverse impacts. I heard no evidence to persuade me that the proposed dwelling houses arrangement would operate in an unsatisfactory manner as to be unacceptable. Nor did I hear any evidence that these changes would adversely affect the locality generally, particularly in terms of streetscape. I also accept that the actual intensity of use of the two dwellings as compared to the single dwelling in terms of resident occupation is unlikely to be so different as to be problematical. 22 In relation to the objections from the neighbours opposite or indeed the neighbouring property to the east, from which there was no objection, these are not matters that would result in the application being refused particularly taking into account the distance of separation across National Street and the introduction of privacy screens. 23 In relation to the conditions there was only one condition in dispute that being the deferred commencement condition requiring the submission of a BASIX certificate. This was opposed by the applicant on the basis that such a certificate is not required under s 97A of the Environmental Planning and Assessment Regulation 2000. This objection is based on the provisions of subcl 2(b) that provides that the clause applies to all development "that involves a change of building use by which a building becomes a BASIX affected building." A BASIX affected building is defined as "means any building that contains one or more dwellings but does not include a hotel or motel." Plainly this existing building containing as it does one or even two dwellings is a BASIX affected building. Because the building already is a BASIX affected building the subject development does not involve a change to the use of the building such that it becomes a BASIX affected building. Hence I accept the submission on behalf of the applicant that the deferred commencement condition can be omitted. 24 The orders of the Court will therefore be that: 1. The appeal is upheld. 2. Development Application No. D2004/379 for the conversion of the existing building into two dwellings at 35 Albert Street, Leichhardt, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits 7, G and F are retained. ___________________ T A Bly 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.