Land and Environment Court of New South Wales CITATION : McGowan v Leichhardt [2004] NSWLEC 130 APPLICANT R McGOWAN PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 11021 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- s 96 modification to existing consent for alterations to stone cottage built before 1840. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environment Plan 2000 CASES CITED: DATES OF HEARING: 17-18, 20/02/2004 EX TEMPORE 02/20/2004 JUDGMENT DATE : APPLICANT Mr P Tomasetti (Barrister) Mr J Doyle (Solicitor) Cowley Hearne Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr G Green (Solicitor) Ms M Lyons Pike Pike & Fenwick JUDGMENT: 3 IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11021 of 2003 Hoffman C 20 February 2004 R McGowan Applicant v Leichhardt Council Respondent Judgment 1. This was a class 1 appeal No 11021 of 2003 between Robert McGowan and Leichhardt Council in regard to the refusal of a s 96 application to amend and existing consent No D/2002/360 for alterations and additions to No 6 Waterview Street, Balmain. 2. It was an old stone house built before 1840 as a harbour master's cottage. It was not a heritage item but it was in a conservation area in the residential zone of the Leichhardt Town Plan 2000. 3. Mr McGowan had commenced the alterations and additions under the existing consent shown in exhibit 3. It could be described as putting a second storey on the rear portion of the house thus leaving the street front appearance of a single-storey cottage intact. 4. The second storey of the approved alterations commenced behind the ridge of the old roof with a new bedroom balcony set partly in the back half of the old roof. The bedroom had another small balcony facing south over the side yard of the property. Beyond that at the western end of the extension was another larger bedroom with en suite and another balcony with a raised planter bed. 5. No 6 Waterview Street had a small allotment about 7.6 m wide and 24 m deep, giving an area of about 1772 m. There was a side pathway to the rear yard of No 6, adjoining No 4 Waterview Street, owned by the Kinnas. The latter had been extended recently with a second storey at the rear with no side setback to No 6. As a result, the rear yard of No 6 appeared narrow and it was only 3.5 m wide, and it had an old well fed by a natural spring that was to be retained. 6. There were no windows in No 4 on it's north side adjoining No 6 but at the rear was a courtyard off the living room of No 4, and a high fence to No 6. No 4 had a street facing skylight over its stairwell near the boundary with No 6. 7. At the back of No 6 was a high wall to No 3 Queens Place. Over the wall was No 3's rear yard which was about 1 ½ m above the ground floor level of No 6. As seen on the view, a person standing at the wall in No 3 Queens Place could look down into the yards of Nos 2,4 and 6 Waterview and to a lesser extent No 8 Waterview. 8. Number 8 was on the downhill side of No 6 and was an allotment that extended past No 6 Waterview rearwards for the width of Nos 3 and 5 Queens Place. The yard of No 8 was downhill and less observable from the subject property. Number 8 had also been recently extended with a two-storey extension at the rear. Because the allotment was almost three times the area of the allotment of No 6 the house was considerably bigger, but still complied with the maximum floor space ratio of 0.7:1. The house of No 8, because it was larger, extended the full length of the allotment of No 6. 9. The council in approving the extension to No 4 Waterview, which was also on a small allotment like Nos 2 and 6, had required the rear setback to match No 2. In approving the extension to No 6 the council had required the second storey of No 6 to have the same rear setback as Nos 2 and 4. The ground floor extension had been allowed to go back almost to the rear boundary, probably because it was downhill of No 4 and did not create any height, bulk or shadow impacts that were unacceptable. 10. What the applicant now sought was to extend the second storey along to be above the ground floor rear extension. The roof was steeply pitched to match the existing house. Along the ridge of the roof of the extensions was a long turret or lantern skylight that further raised the height and bulk of the s 96 amendment. The existing consent had only a small turret in the rooftop and it was set eastwards towards the street. 11. The extensions to the building were proposed to be in stone to match the existing cottage, and it was important to place the heavy stone walls of the second storey directly above the walls of the ground floor. 12. The existing council approval showed above the western-most ground floor rooms, that there be only a balcony one metre wide and a raised planter bed of vegetation beyond that. These features provided the outlook for the west-facing bedroom of No 6. This was said to protect the privacy of the rear yards of Nos 3 Queens Place and Nos 4 and 8 Waterview Street and was an important consideration in the original approval. 13. The applicant said the privacy of those allotments was even more protected by the s 96 amendment because the windows to the proposed bedroom, where the balcony and planter would have been, would have a west-facing window shielded by louvre blades to prevent overlooking. 14. There was also in the s 96 amendment a hayloft style door to this same new bedroom, and the door faced the yard of No 4 Waterview. It was said that the door would only be open to move furniture in and out of the second storey. This door was needed because there was only a spiral stair to the upper floor, and the applicant had large antique furniture. The respondent and the Kinnas said that a future owner may not have the same intention and the door might be opened for light and ventilation and it would overlook the Kinnas' back yard from close quarters. It was illegal under the Building Code of Australia in any case. 15. During the hearing the applicant realised the plans in exhibit A did not show an extended beam over the hayloft door for a block and tackle to be attached to. The applicant already had the block and tackle which was to be fitted to enable furniture to be lifted up. 16. As the hearing progressed there were several more things that were inconsistent in the drawings, an example of which was the doors for the new large first floor balcony to one of the bedrooms. It was shown in three different configurations and two different sizes of openings. In the end it was put that the layout on the plan view drawing was the proposal, but there was no elevation of that configuration. Another example was the west-facing window to the new west-end bedroom which was shown as a casement window on the plans but the applicant wanted a double-hung window. Also, the same window shown in Section D was much larger than shown in the elevations. 17. It seemed that these inconsistencies partly arose because Mr McGowan was selecting used old windows and doors that may be around the age period of the original house. Some of these he had, and some of them he didn't, and some that he did have would need to be altered to fit, and the drawings had conflicts and inconsistencies as a result. 18. The applicant sought an adjournment to fix these anomalies but the Court determined the hearing should be completed, and in the event of any foreshadowed consent, time would be allowed to fix the drawings in accordance with any draft conditions. 19. In final submissions on the plans there were further ramifications of the applicant's option offered to the Court to lower the wall height of the second storey to 2.1 m or alternatively 2.4 m above the second floor level instead of the 2.7 m shown on the plans. Also, the hayloft style door to the rear bedroom could be deleted and replaced with a highlight window. These changes would necessitate extensive redrafting of the drawings. 20. In the Court's opinion there were three main issues in the matter: (1) Was the s 96 application substantially the same as the original consent? (2) Were there impacts of the amendment such that made it unacceptable? (3) The inconsistent drawings, given the need for certainty in the event of any consent. 21. Mr Flitcroft, owner of No 8 Waterview St, said he supported the proposed amendment as giving him greater privacy in his back yard because of the deletion of the western balcony. His own house largely screened the proposal, so bulk was not a concern, and he was on the North side so shadows did not occur. 22. Mr Thatcher, owner of No 3 Queens Place, said he preferred the existing consent as it gave a greater gap between his back yard and the higher built form and bulk of the second storey. He thought this was important to keep his back yard feeling spacious. In the end he agreed the louvre privacy screens on the West window of the new bedroom would protect his privacy. There were no shadow impacts. He was also concerned about the increased height of the proposal blocking views towards the city. When the Court observed the locations from which he said the views were blocked it was plain that any reduction of views was minor and not sufficient for any refusal. 23. Mr Kinna, owner of No 4 Waterview St and the respondent said that the council had refused an earlier application by Mr McGowan for extensions similar to the current s 96 application. That refusal had given rise to the existing consent that moved the bulk of the second storey eastwards so its rear bedroom wall was on the same setback as Nos 2 and 4 Waterview Street. This removed the bulk and height of the second storey from Mr Kinna's northern aspect and reduced overshadowing to acceptable levels. Privacy had been retained by side screens to the rear bedroom balcony and the planter bed. 24. The proposal put the bulk due North of No 4's rear entertainment yard, caused extra overshadowing from 9am to noon in midwinter that Mr Kinna said was unacceptable. The applicant demonstrated that although there was increased shadows, the rear courtyard of No 4 still retained the council's minimum required hours of direct solar access. Mr Kinna was concerned that the hayloft door was also a potential privacy problem. 25. A further concern was oral privacy. The existing consent had three small bedroom balconies at first floor level accessible only through bedrooms, and therefore no likelihood of them being used for noisy activities. The s 96 application removed these three balconies and created a new large balcony of about twenty square metres directly accessible from the ground-floor living rooms of No 6. It was able to be used for entertainment and would be a noise source in that event and may create friction between neighbours, in Mr Kinna's opinion. 26. The respondent supported these claims, and added that the existing consent involved a State Environmental Planning Policy No 1 objection to allow an excedance of the floor space ratio. The council had supported that objection due to the configuration of the building that minimised impacts, namely by moving the second storey eastwards to match the rear setbacks of Nos 2 and 4, and not having a potential noise source balcony at first floor level. 27. Although the State Environmental Planning Policy No 1 objection was not needed for this s 96 application, the floor space ratio excedance was increased in this proposal, and the impacts the council sought to avoid in the existing consent were re-introduced. 28. Further evidence was that the existing consent had the spiral stair coming to an internal hallway at the first floor level, which gave separate access to each bedroom. The s 96 amendment had the spiral staircase coming to the new first floor balcony which did have a roof but was otherwise open to the elements. From that balcony there was access to one bedroom with an en suite. To get to the second bedroom one had to actually walk through the other bedroom. To go to a bathroom from the western bedroom one would either use the en suite of the other bedroom or go back through the other bedroom and down the spiral stairs to the ground floor bathroom. It was not very good design or amenity, the respondent said. 29. Mr McGowan said he was concerned that all his neighbours had been granted their extensions and alterations and he had not objected to them. Now it was his turn to build extensions, and he was being denied reasonable expectations of achieving adequate internal space on a small allotment. 30. He was constrained in where he could build, due to the existing stone building which he wanted to preserve as far as possible, and to build in a sympathetic style in stone rather than lightweight construction. 31. Moving the bulk of the second storey westwards meant that the existing main roof of the original stone cottage could be preserved intact and there was less interference with the existing structure. Also the well in the back yard was part of the history and should be preserved and that combined with his side access laneway reduced the width in which he could extend. 32. As a result he had limited space compared to his neighbours, and due to the house on No 8 extending almost the length of Mr McGowan's block there was justification for the second storey of his house to be setback further than the rear of No 4. The council Development Control Plan 2000 in its building zone provisions allowed that to occur by drawing a line between the rear of the house in No 4 and the rear of the house in No 6. Mr McGowan said the proposal fitted that control. 33. Mr Smith, the council planner, said the ground floor was within the allowed setback between Nos 4 and 6, but the second storey was not necessarily allowed where there were impacts and the floor space ratio was exceeded. In this case the s 96 application increased the floor space ratio excedance and the impacts. In fact the council Development Control Plan 2000 stated this in terms in cl B.2 entitled The Building Location Zone Guidelines that in such circumstances the reduced rear setback should not be allowed. 34. Overall the Court must say Mr McGowan has to be commended for his care and concern for the existing stone cottage which has considerable charm and being pre-1840 must be one of the earliest houses in Balmain still in existence. 35. One could make the observation that his choice of a Victorian bull nose roof over the proposed new balcony and the uncertainty of selecting windows and doors, etcetera, depending on what he could find second hand, may produce a result that is inconsistent with the Georgian style of the original cottage. But the respondent has made no issue of these things and the Court takes no account of it. 36. The council officer's conclusion that the s 96 application is "alterations and additions", and that was the original application, and therefore this s 96 application is substantially the same, is simplistic. When one considers the change in form of the building and its impacts, the planning outcomes between the existing consent and the proposed amendment are quite different, in consequence of which the Court concludes it is substantially different under the relevant sections of the Environmental Planning and Assessment Act 1979, and therefore the appeal fails. 37. If I am wrong in this, the conclusions on the merits and evidence is that the internal amenity of the bedrooms of the s 96 application are far below that of the existing consent, and the impacts of bulk and scale on No 4 Waterview Street are not acceptable. Although reducing the height of the walls of the second storey may overcome this, there needs to be redesign that could not be appropriately dealt with by conditions of any consent. 38. Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned except for exhibits A, B, G and J. ___________ K G Hoffman Commissioner of the Court nm 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.