Aitchison v Leichhardt Municipal Council [2005] NSWLEC 648

Land and Environment Court of New South Wales

CITATION : Aitchison v Leichhardt Municipal Council [2005] NSWLEC 648

APPLICANT Aitchison (Trouton)

PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 11244 of 2004

CORAM: Tuor C

Development Application :- Demolition of exiting cotage and construvtion of two houses Impact on heritage significance of conservation area KEY ISSUES: SEPP 1 objection to floor space ratio Building envelope

Leichhardt Local Environmental Plan 2000 LEGISLATION CITED: State Environmental Planning Policy No 1

DATES OF HEARING: 27-28/10/2005 EX TEMPORE JUDGMENT DATE : 10/28/2005

APPLICANT Mr A Pickles, barrister Instructed by: Mr M Ball, planner LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

31 October 2005

11244 of 2004 Aitchison (Trouton) v Leichhardt Municipal Council

1 COMMISSIONER: This is an appeal against the refusal by Leichhardt Municipal Council (the council) of a development application for demolition of an existing timber cottage and construction of two four-level attached dwellings at 13 Trouton Street, Balmain (the site). The site and its context 2 The site, its context and the history of the application are in the amended Statement of Basic Facts. 3 Briefly, the site is located on the northern side of Trouton Street. It has an area of 285 sq m, a width of about 9.3 m and a depth of 30.5 m. The site slopes from Trouton Street to Campbell Lane at the rear about 3.8 m. 4 There is a single storey detached timber cottage on the site, which dates from the 1850s. It is set back about 4 m and is below the level of Trouton Street. 5 Development to the east is a row of two storey terraces, which continue up Trouton Street to Campbell Street. Two storey development also occurs on the southern side of Trouton Street, from opposite the site to Campbell Street. 6 Immediately adjoining to the east at 9 to 11 Trouton Street is a pair of Victorian terraces with two storey plus attic to the street and a lower ground floor level to the rear. 7 Immediately to the west is 15 Trouton Street, which is a single storey cottage with a later two storey extension to the rear. Other development in the street is single storey houses, some with two storeys to the rear. The Proposal 8 The proposal is similar to the terraces to the east, being two storeys plus attic to the street and an additional level to the rear taking advantage of the slope of the land. 9 The proposal is set back 1 m from Trouton Street to the balcony and 2.1 m to the main face of the building. This setback is slightly less than 15 Trouton Street but similar to 9 and 11 Trouton Street. 10 The proposal is built to its side boundaries at Trouton Street and then set back from the side about 900 mm. 11 A single car space is proposed for each dwelling, accessed on Campbell Lane. Planning Framework 12 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (LEP 2000) and the proposal is permissible with consent. 13 Under cl 19(2) of LEP 2000 a maximum floor space ratio (FSR) of 0.7:1 is permissible. The proposal has an FSR of about 0.9:1 and therefore does not comply with this standard. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1). 14 The site is within the Balmain Conservation Area. Clause 15 of LEP 2000 provides relevant objectives for heritage conservation: