Land and Environment Court of New South Wales CITATION : Berrafall Pty Ltd -v- Council of the City of Sydney [2009] NSWLEC 1059 APPLICANT Berrafall Pty Ltd PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10971 of 2008 CORAM: Tuor C DEVELOPMENT APPLICATION :- residential development. KEY ISSUES: impact on tree whether front setback and character of streetscape residential amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000 State Environmental Planning Policy No 1 DATES OF HEARING: 09/02/09 and 10/02/09 DATE OF JUDGMENT: 4 March 2009 APPLICANT Mr J. Cole, solicitor of HWL Ebsworth Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M. Baird, barrister Instructed by Ms C. Rose of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 4 March 2009 10971 of 2008 Berrafall Pty Ltd -v- Council of the City of Sydney JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by the Council of the City of Sydney (the council) of a development application (D/2008/270) under the Environmental Planning and Assessment Act 1979 (the Act) to construct three terraces, alterations and additions to two existing terraces, basement parking for four cars with access off Alfred Road, demolish an existing shed, removal of signage, landscaping and subdivision at 61 – 63 Hereford Street, Glebe (the site). 2 The key issues between the parties is whether the existing fig tree would be adversely affected by the proposal and whether the front setback of the new terraces maintains and enhances the character of the streetscape. The site and its locality 3 The site is irregular in shape with a total area of about 928 sqm. The site has a primary frontage to Hereford Street and secondary frontages to Minogue Crescent and Alfred Road. A pair of two storey terraces front Hereford Street. A metal shed is constructed in roughly the middle of the site adjoining a large fig tree set above Minogue Crescent. The rear two thirds of the site is vacant with vegetation along Minogue Crescent. 4 Adjoining the site to the south west is a single storey dwelling (65 Hereford Street) which in turn adjoins a recent residential development (69 Hereford Street also known as 25 Alfred Road) that fronts both Hereford Street and Alfred Road. 5 Adjoining the site to the north east are two semi detached single storey dwellings (59A and 59 Hereford Street). 6 The site is elevated above Minogue Crescent about 3.3 m and there is a vegetated open space strip along Minogue Crescent and the site. Planning controls 7 The site is zoned part Residential and part Open Space under Leichhardt Local Environmental Plan 2000 (LEP 2000). The proposal is permissible with consent, subject to cl 26(5) and (6) for development on that part of the site zoned Open Space. Clause 26(5) and (6) provides: Development near Open Space Zone boundaries (5) Consent may be granted to the carrying out of development that is within the Open Space or Residential Zones and is within 10 metres of a boundary between those zones for any purpose for which development may be carried out either with or without development consent in the adjoining zone and on the other side of that boundary. (6) Consent must not be granted in accordance with subclause (5) unless the consent authority is satisfied that: (a) the development would not reduce the total area of land available for use as public open space, and (b) in the opinion of the consent authority, the carrying out of the development is desirable to achieve a better disposition of buildings and open space on the land. 8 The site is located within the Glebe Conservation Area and the Open Space zone is identified as part of the landscape heritage item known as Minogue Crescent Glebe under LEP 2000. 9 Clause 19 (4) of LEP 2000 specifies a minimum allotment size of 200sqm. The proposal, as amended in response to the recommendations of the planning experts, does not meet this standard. The applicant has lodged an objection under State Environmental Planning Policy No 1 (SEPP 1). Clause 30 of LEP 2000 also provides criteria for the subdivision of land. 10 The proposal complies with the floor space ratio (FSR) and landscape area controls in cl 19 of LEP 2000. 11 Leichhardt Development Control Plan 2000 (the DCP) is also relevant. The proposal complies with the relevant controls in the DCP, although the parties did not agree whether it complies with the Building Location Zone (BLZ) control in Part B1.2 of the DCP. The evidence 12 The Court visited the site and heard evidence from residents on site. The principal concerns of the residents related to the impact of the proposal on the Fig tree and the open space along Minogue Crescent. The owners of 59A and 65 Hereford Street were concerned about the bulk, privacy and overshadowing impacts of the additions to the existing terrace houses and the proximity of the new development. 13 Mr A Jeremy spoke on behalf of the Body Corporate of 69 Hereford Street (25 Alfred Road). The main concern relates to the intrusion of the second floor of the proposal into the front and rear setback area, which would impact on the streetscape and open space area. Mr Jeremy also raised concerns about pedestrian safety resulting from cars reversing into the driveway. He suggested that one dwelling be deleted enabling a greater setback from the front and the rear and to the Fig tree. 14 Mr Ball of 25 Alfred Road was also principally concerned about the front and rear setback of the proposal, which he considered would have an unacceptable impact on their property through its height and bulk, loss of privacy and outlook. 15 The Court heard expert planning evidence from Ms K Gordon, for the council and Mr A Martin, for the applicant. Mr D Draper and Mr P Castor, for the applicant, Mr A Morton, for the council and Ms C Mackenzie, for the Body Corporate of 69 Hereford Street, provided expert arboricultural evidence. Impact on the fig tree and open space zone 16 The arborists all supported the retention of the Fig tree, which they considered to be significant with good health and vigour. Although Ms Mackenzie considered the condition of the upper crown indicated a loss of vigour. They also supported the removal of the existing shed and concrete slab, which adjoin the Fig tree. 17 The experts agreed that the deletion of the proposed deck of unit 3, elimination of the fill to the rear yards of the existing terraces (proposed lots A and B) and limiting the basement excavation to 20% of the 15m tree protection zone (TPZ) would minimise any adverse impact on the tree. These recommendations have been incorporated into amended plans and conditions of consent. However, Ms Mackenzie did not accept that the basement excavation would affect less than 20% of the TPZ as: the proposal has not considered the tree has an asymmetrical root plate and that the majority of the root mass would be found beneath the existing concrete slab and extend well into the area proposed for excavation. 18 Mr Draper stated that: The proposal considered the asymmetrical root plate from the outset and the radial nature of root growth to have developed within the extensive contiguous deep soil planting areas remaining parallel to Minogue Crescent, in the rear yards of the terraces and on the southeast side of unit 3 satisfactory for this robust Fig tree to remain stable and viable with no long term adverse impacts. 19 Mr Castor and Mr Morton agreed that if piling was used for the basement construction the incursion into the TPZ would be less than 20%. Mr Castor stated that post development there will be greater than 800sqm of deepsoil available to the tree for additional or denser root development. 20 The experts agreed that the extent of pruning of the canopy (no more than 10%) for the development and during construction is acceptable. 21 Mr Martin and Ms Gordon agreed on the boundary of the open space zone and the residential zone and that some of the building encroached to a minor extent within the open space zone where the site narrows. However, other parts of the building were outside the open space zone which achieved a greater set back around the Fig tree and had positive benefits for the tree. They therefore considered that the proposal achieved a better disposition of buildings and open space on the land and met the criteria in cl 25 (5) and (6) of LEP 2000. Findings 22 With the exception of Ms Mackenzie, the arborists have accepted that the proposal will not adversely impact on the Fig tree. Mr Morton recommended changes to the design including the deletion of the proposed deck off unit 3 and piering of the basement excavation. The experts also recommended conditions of consent that include measures to be undertaken during excavation and construction to protect the tree. 23 The applicant has agreed to the changes and the proposed conditions. Council has also imposed a condition that requires a covenant to be placed on lots A, B and C requiring the retention of the tree. The applicant opposed the covenant on the basis that the retention of the tree could be required as a condition of consent. I have accepted Mr Baird's submission for the Council, that the covenant is necessary as it is placed on the title of each lot and therefore advises purchases of lot A and B of their obligation to retain the Fig tree. Mr Castor and Mr Draper's evidence was based on there being sufficient deep soil available in lots A, B and C to ensure the ongoing vigour of the tree. It is therefore appropriate that lots A and B, in which the tree is not located but upon which the tree is dependent, are aware of their obligations to retain the tree. 24 Similarly, the removal of the deck off unit 3 minimises the impact on the tree and also removes potential conflict between the use of this area as the principle area of open space for unit 3 and retention of the tree canopy, which the deck is directly below. 25 Mr Baird submits that the survival of the tree is dependent upon amended plans and extensive conditions. He stated that even with these measures there is a degree of uncertainty and disagreement amongst the experts as to the likely health of the tree and in these circumstances the Court should take a precautionary approach and refuse the application. 26 I do not accept this submission. The application has been amended to address the concerns of the arborists. With the exception of Ms Mackenzie, the arborists are satisfied that the tree can be retained in good health. Ms Mackenzie's concern centred on the distribution of the root plate of the tree which the other experts did not support. 27 The arborists did not recommend further changes to the basement design such as moving car spaces further from the tree or deleting the studies. Clearly if such measures were required to ensure the ongoing health or survival of the tree the onus would be to incorporate such changes rather than refusal of the application. 28 I accept the evidence of Mr Draper, Mr Castor and Mr Morton that the changes that have been made and the proposed conditions are reasonable and, if complied with, will provide for the ongoing health and vigour of the Fig tree, which is a significant element in the area. 29 The minor encroachment of the building into the open space zone meets the criteria in cl 26 (5) and (6) in that it achieves a better disposition of buildings and open space on the land by providing a greater setback around the Fig Tree. Setback 30 Ms Gordon and Mr Martin disagreed about whether the front setback of the proposal was within the BLZ and maintained and enhanced the character of the streetscape. Ms Gordon was principally concerned that the front wall and balcony of the proposed first floor level were forward of the adjoining property at 25 Alfred Road. She considered that this added to the bulk of the building and was not characteristic of the streetscape. Ms Gordon considered that this could be mitigated by setting the first floor and balcony back an additional 1.6m or alternatively reducing the width of the balcony to approximately 600mm and removing its roof and side privacy screens thereby reducing its bulk. 31 Ms Gordon accepted that the ground floor plate of adjoining development establishes the BLZ under the DCP. The proposal is setback significantly more than the lower level of 25 Alfred Road. However, Ms Gordon stated that the principle of the control is to maintain and enhance the character of the streetscape and in her opinion this was not achieved. 32 Mr Martin considered that the proposal complies with the control and achieves its aims. He stated that the proposed first floor is lower in height, setback 3.7 m from 25 Alfred Road and screened by planting. The site protrudes forward into the street than the alignment of 25 Alfred Road. In his opinion the balcony adds relief to the façade and replicates other balconies in the street. These factors mean that the proposal will appear as separate building in the street and will not result in a form of development that is uncharacteristic of the streetscape. 33 In Mr Martin's opinion the proposed balcony would not result in unacceptable privacy impacts on the adjoining terrace of 25 Alfred Road. The proposed balcony is narrow, off a bedroom and it and the terrace face the street and are therefore within a public area. Mr Martin accepted that the privacy screens could be removed to reduce the perception of bulk and that the width of the balcony reduced to 1m which would provide sufficient width for people to sit on the balcony but not for it to be used for entertaining. 34 Ms Gordon and Mr Martin did not raise any concerns about the rear setback of the proposed first floor. They considered it to be consistent with the side blade wall of 25 Alfred Road and that most of its terrace would not be able to be seen. The first floor of the proposal is lower than 25 Alfred Road and achieves an acceptable relationship. Findings 35 While I accept the evidence of Mr Martin that the front setback of the proposal is within the BLZ, the size of the proposed balcony is beyond what is necessary off a bedroom. A reduction in width to 1m will reduce the bulk of this structure by eliminating the need for privacy screens and the roof. This will still provide sufficient width for people to sit on the balcony but for it not to be used for entertaining. Given the public nature of the balcony and the adjoining terrace facing the street I accept that there will not be a privacy issue with this arrangement. 36 Amended plans have been provided which incorporate the change to the balcony. I am satisfied that with this change the proposal meets the requirements and principles of the BLZ control in the DCP. Other issues 37 The adjoining owners of 59A and 65 Hereford Street raised concerns about the bulk and proximity of the additions to the existing terrace houses. The ground floor additions are to be built to the boundary. Mr Martin and Ms Gordon recommended that the ground level bathroom, kitchen living room and deck of 61 and 63 Hereford Street be setback 500mm from the boundaries. The plans have been amended to incorporate this change and I accept the experts' opinion that the setback will not result in unsatisfactory impacts of bulk, overshadowing or privacy. 38 The experts also recommended that the deck of 61 Hereford Street be lowered to prevent any potential for overlooking of the rear of 59A Hereford Street. The amended plans have incorporated this amendment and are satisfactory. 39 The other privacy issues raised in the Contentions have been addressed by the changes recommended by the planners including measures such as frosted glass and privacy screens. 40 The owner of 65 Hereford Street raised an additional concern in response to the inclusion of a "door" in the rear elevation of unit 3 in the amended plans. He is concerned that this will impact on his privacy. The planners have subsequently reviewed this change and raise no concerns. The "door" is a window and the floor level behind it is below ground level by 1m. It is below the fence line and has a separation distance of about 20m from the dwelling at 65 Hereford Street. I am satisfied that the inclusion of this window will not result in an unacceptable privacy impact. 41 The planners recommended changes to the subdivision proposal which resulted in proposed lot A being 191sqm, which is below the minimum allotment size in cl 19(4) of LEP 2000 of 200sqm. Mr Martin submitted a SEPP 1 objection. Both he and Ms Gordon agreed that the despite the non compliance the proposal met the underlying objective of the standard and that the objection was well founded. I accept this position. 42 Council did not raise the concerns raised by Mr Jeffrey about pedestrian safety. The assessment by council's traffic engineer found the proposal to be acceptable. None the less, Condition 46 has been amended to require a Public Domain Plan, which will include works to Alfred Road to ensure vehicular and pedestrian safety resulting from the development limited to bollards, a mirror, kerb and gutter, footpath, lighting, and driveway. Orders 43 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (D/2008/270) to construct three terraces, alterations and additions to two existing terraces, basement parking for four cars with access off Alfred Road, demolish an existing shed, removal of signage, landscaping and subdivision at 61 – 63 Hereford Street, Glebe is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibit 1 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. 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