Land and Environment Court of New South Wales CITATION : Serisier S v City of Sydney Council [2008] NSWLEC 1237 APPLICANT Suzanne Serisier PARTIES : RESPONDENT City of Sydney Council FILE NUMBER(S) : 10322 of 2008 CORAM: Watts AC KEY ISSUES: Section 97 Appeal :- Bulk and scale and Impacts on streetscape (John Lane) Leichhardt Local Environmental Plan 2000, (LLEP) LEGISLATION CITED: Leichhardt Development Control Plan 2000, (LDCP) City of Sydney Heritage Development Control Plan 2006, (HDCP2006) DATES OF HEARING: 06/06/2008 DATE OF JUDGMENT: 24 June 2008 APPLICANT Mr M McMahon, solicitor SOLICITORS M E McMahon and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts AC 24 June 2008 10322 of 2008 – Suzanne Serisier v City of Sydney Council JUDGMENT 1. This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the City of Sydney Council (the council) to attach Condition 2 to a development application to delete a roof terrace over a proposal to erect a "[n]ew rendered brick garage with panelled lift door to John Lane" at Lot G DP 913863, being No 199 Bridge Road, Glebe. 2. I visited the land in company with the parties on the morning of the hearing and heard from the neighbour Mr S Jahshan of No 201 Bridge Road, Glebe. 3. I have concluded that the proposal would be contrary to the objectives of the heritage development control plans and the council's decision should be endorsed to allow the garage without the roof terrace. The proposal would not present as being "…subsidiary in bulk and scale and simpler in detail than development fronting a main street", [Note: Exhibit 1, p 571 HDCP2006 cl 10, p 47]. In coming to this conclusion I have taken into account that rear lane buildings and structures are simple of design and largely single storey in height. The land 4. The land is situated on the northern side of Bridge Road between Ross and John Streets. Further to the east is the intersection of Bridge Road with Woolley Street. 5. The land has a frontage to Bridge Road of 5.1m and to John Lane of 4.995m and depth of 33.395m on the northeastern side and 33.41 on the southwestern side. It has an area of around 177.85m2. Erected on the land is a two-storey terraced dwelling and at the rear is an outhouse. Two-storey terraced dwellings are erected on neighbouring land. 6. At the rear of No 201 Bridge Road there is a skillion roofed two-car garage and at No 197 is a garage, possibly for two cars, with a reinforced concrete accessible roof terrace with metal balustrade. John Lane at the rear is around 4.7m wide. 7. Opposite the land in John Lane is a single storey blank wall of a dwelling in John Street and is shown in the photograph in Exhibit 1, p 20. 8. The land is within the Glebe Conservation Area and streetscapes include those along lanes and streets within the area. Relevant planning controls 9. Under the provisions of the Leichhardt Local Environmental Plan 2000, (LLEP) the land is zoned residential and the proposal being ancillary to the residential use is permissible with consent. 10. Under the provisions of the Leichhardt Development Control Plan 2000, (LDCP) John Lane is a narrow lane being between 2.5m and 5.0m in width. Under cl B4.3 LDCP the laneway hierarchy narrow lanes have a service character and are appropriate for garages and are only wide enough for a single car to pass and obtain access to the garages. There is 'no standing' of vehicles in narrow lanes. The suggested type of development along narrow lanes of "…less than 5m includes garages, workshops, garden sheds and storage rooms", [Note: Exhibit 1, p 466]. 11. Under the heading of 'General Laneway Controls' urban form in laneways is described, [Note: Exhibit 1, p 467]: o Development shall be designed with simple built forms and not be visible from primary street frontage and should be at or very close to the lane alignment. o Use painted and bagged finishes to walls or plan brick and timber. o Roof forms should include gabled roofs pitched from sides, or skillion roofs located behind parapets. Use corrugated iron, slate or terracotta tiles for roofing materials. o Roof openings shall be flush to the roof and should not represent dormer windows or the like, whether or not they are visible from a public place. o The scale of building envelopes for development fronting onto lanes shall not be higher than the prevailing building envelopes within the lane. o For narrow lanes, the side-wall height shall be limited to a maximum of 3m with a 45 degree envelope control, allowing a roof height limit of 5m. (Diagrams show pitched roofed forms with a wall height of 3m and roof height of 2m). 12. Under the provisions of the City of Sydney Heritage Development Control Plan 2006, (HDCP2006) development of lanes within conservation areas should be "…subsidiary in bulk and scale and simpler in detail, than development fronting a main street", [Note: Exhibit 1, p 571]. It is then stated that this form of development should respect "…the predominant scale of the area particularly where the existing scale of rear lane buildings and structures is single storey". 13. The objectives for rear lanes in heritage conservation areas… (i) is of a scale and type that is compatible with the width of the lane; (ii) does not dominate the lane or other properties that front the lane; and (iii) retains and respects significant rear development and original built form. 14. The HDCP2006 continues stating that "[t]wo-storey structures to rear lanes and generally not appropriate except where there is an existing pattern at this scale in the immediate vicinity", [Note: Exhibit 1, p 571]. The proposal and its history 15. Development application No D/2007/601 lodged on 10 April 2007 was approved by the respondent council on 16 July 2007 and Condition 2 required: 2 Roof Terrace The roof terrace is unacceptable, and does not form part of this consent. The provision of stairs and the parapet for the roof terrace are not to be constructed. Amended plans showing the deletion of these elements shall be submitted to Council prior to the issue of a Construction Certificate. 16. The original application was for a 1m high solid balustrade around the perimeter of the roof terrace with access via stairs on the southern side of the garage. The terrace would have been 7.4m x 4.5m with a trafficable area of some 32m2. 17. Prior to and during the hearing the plans were amended. The final design is depicted in Exhibit A as a terrace of 13m2 surrounded by a 600mm wide planter bed and screened to 1.5m in height by glazing located on the inside of the planter beds. The glazed screen would be opaque [translucent] on three sides and clear onto the lane. The lane planter bed would be setback 1m from the lane alignment and a non-trafficable roof around 1.3m wide would be provided on the southern side of the roof of the garage. Notification 18. The application was notified to nearby owners and occupants and the council received one objection from the neighbours at No 201 Bridge Road. Concerns were expressed for a reduction in amenity due to the likely noise to be generated by the use of the elevated terrace. In a letter dated 21 April 2007 Ms J Jahshan and Mr S Jahshan, objected to the rooftop terrace and stated: (i) The proposed development removes three (3) healthy Palm Trees that are at least 40' (feet) high and are the natural habitat to native lorikeets and other birds. (ii) The proposed garage will protrude from our garage line by over three (3) meters and will have a 3.6 metre high wall that will shadow our backyard from the easterly sun. (iii) The proposed rooftop terrace will overlook our backyard completely, removing all privacy in our property. (iv) The proposed rooftop terrace will look directly into a bedroom on our lower ground floor. (v) We are concerned that any alterations to the rooftop terrace that includes walls to cover the visibility into our backyard will worsen the shadowing problem. 19. The letter continued that there is no objection to the garage. 20. The Jahshans also objected in similar terms to the Section 82A review application. The council's decision 21. By notice dated 16 July 2007 the council approved the garage application and included Condition 2 that deleted the roof top terrace. 22. By notice dated 18 December 2007 the council adhered to its previous decision when it reviewed the Section 82A application for reconsideration, [Note: Exhibit 1, p 56]. 23. The Small Permits Appeals Panel had considered the Section 82A application on Friday 23 November 2007 when Ms Serisier addressed the panel. The panel inspected the site prior to recommending refusal of the rooftop terrace. The hearing 24. The appeal was filed on 4 April 2008 against the imposition of Condition 2 and the parties accept the appeal is de-novo. 25. At the hearing the Court received written evidence on behalf of the respondent council from Ms E T Z Brown, town planner of the council. On behalf of the applicant Mr A Betros, town planner also provided written evidence and gave oral evidence. 26. A joint town planning report was prepared by these witnesses and came to the Court as Exhibit 3. The contentions 27. On 14 May 2008 the applicant filed a statement of facts and contentions and Ms Brown on 21 May 2008 in Exhibit 2 provided a statement of evidence that also included facts and contentions. 28. Ms Brown stated the contentions as being the: 1. non-compliance with objectives of the Leichhardt Local Environmental Plan 2000, (LLEP); 2. poor precedent; 3. impact on open space; 4. privacy, noise, overlooking and amenity impacts; 5. overshadowing; and 6. non-compliance with City of Sydney Heritage Development Control Plan 2006 , (HDCP2006). 29. Mr Betros contended for the applicant that: 1. the outdoor terrace with appropriate screening would not cause adverse or unreasonable visual or acoustic privacy impacts; 2. overlooking would be insignificant and must be assessed in the context of common mutual overlooking; 3. there would be no adverse streetscape impacts to John Lane and would be consistent in height to garages along the lane as per B4.3 of the LDCP; 4. there would be casual surveillance of John Lane consistent with B4.3 of LDCP; 5. no unreasonable overshadowing would result to the rear habitable rooms or to the private open space of the eastern and western neighbours. In addition the removal of trees would improve solar access; 6. the outdoor terrace would provide improved amenity for the residents of No 199 Bridge Road, the subject land, consistent with objective 17(b) LLEP; 7. there would be less visual and acoustic impacts than a deck at the rear of a terraced house; 8. although not classified as landscaped area the outdoor terrace would assist in addressing the 7% deficiency of landscaped area under cl 19(3)(a) LLEP; 9. the proposal would not be inconsistent with HDCP2006; and 10. the proposal would not set an undesirable precedent and should be considered on its merits. 30. The salient issues are the bulk and scale of the proposal in the context of John Lane. The evidence and findings Bulk and scale of the proposal in the context of John Lane 31. Mr Kondilios described the proposal shown in Exhibit A as being of a "top hat" design and as such the proposal would be inappropriate in the streetscape or lanescape and should be not approved. 32. Mr McMahon submitted the proposed amended rooftop terrace should be approved as: o any overshadowing had been addressed by moving the southern screen to the north of the southern side of the garage roof at No 201 Bridge Road; o translucent glazing would limit noise transmission and overcome any aural privacy concerns; o the lane is far from being an intact rear lane in a conservation area and thus appropriate; o the proposal would provide more open space for the applicant; o there is no amenity problem across the lane as there is a blank wall opposite and unlike the proposed terrace on the corner of John Lane and John Street that was also refused by the council. o there is no precedent and the original design and that amended during the hearing can be approved by the Court. 33. I am satisfied that the amended proposal [Exhibit A] would not present as being, "…subsidiary in bulk and scale and simpler in detail than development fronting a main street", [Note: Exhibit 1, p 571 HDCP2006 cl 10, p 47]. I accept the evidence of Ms Brown in preference to that of Mr Betros that the proposed, "…roof terrace would not integrate into the conservation area or enhance the streetscape". She also considered the roof terrace would "…disrupt the established scale of development …along John Lane". 34. I agree with this assessment and in coming to my conclusion I have taken into account the predominantly single-storey height and simplicity of building form of the rear lane buildings and structures. 35. The proposal is for a garage and it would be of simpler form without the accessible roof terrace. The proposed screens surrounding the roof top terrace would be 1.5m high above the roof structure and would be surrounded by planter boxes. This would be more complicated form than the garage at No 201 Bridge Road to the west surmounted by a simple skillion roof. The complicated form of the proposal, to my mind, would not meet the objectives of being "…subsidiary in bulk and scale and simpler in detail than development fronting a main street". Thus I consider it would be inappropriate in the context of the lane. 36. I accept the submission of Mr McMahon that the character of the rear lane in a conservation area is far from being intact, however the council's policy is to simplify the bulk scale and form of this type of development within the conservation area. I consider the proposal to be of inappropriate form in the context of the lane. 37. For the above reasons, the de novo appeal is upheld subject to the imposition of the original Condition 2 that required the deletion of the roof terrace over the garage. Other matters 38. I accept the submission of Mr McMahon that the shading of No 201 Bridge Road would be largely addressed by the amendments made during the hearing, that included the moving the southern screen to the north of the southern side of the garage roof of that neighbouring property. Also the glazed screen would allow some light to penetrate. Also as pointed out by Mr Betros the removal of the trees on the site of the proposed garage would open up the rear yards in the vicinity to more light and sunlight than presently is the case. 39. I accept the submission of Mr McMahon that the translucent glazing enclosing the proposed useable terrace area, included in the amendment, would serve to limit noise transmission and would largely overcome the aural privacy concerns of the neighbours at No 201 Bridge Road. However, the proposal would not respect and reflect the existing built form as required by the LLEP. 40. I accept the submission of Mr McMahon that the proposal would provide more open space for the applicant, however the responsibility of the Court is to carefully weigh the private interest in the balance with the public benefit of maintaining the service character of the lane, [Note: Exhibit 1, p 467, LDCP, p B67]. 41. I accept the submission of Mr McMahon that as there is a blank wall opposite 'amenity problems' across the lane would be thereby lessened. I accept that the amended proposal would not be as prominent in the streetscape as the proposed terrace above the garage on the corner of John Lane and John Street. However, the council also refused an application for a roof top terrace there in November 2004, and the evidence shows that the council has not recently supported other similar applications, [Note: Exhibit 2, p 11, DA2004/1037 at No 187 Bridge Road, Glebe]. 42. I note that the council approved the last roof top terrace in the vicinity in October 2000, at No 197 Bridge Road adjoining the subject land. 43. I do not accept the submission of Mr McMahon there would be no precedent set if the Court were to approve the proposed roof top terrace. I accept the evidence of Ms Brown, for the council, that there are other sites on narrow lanes in the vicinity that are similar to the one before the Court and that there are people that might be encouraged to submit applications for roof top terraces fronting lanes on the basis of an approval for the subject land. 44. The amendments to the original design that were made during the hearing certainly improved the application and at the conclusion of the hearing the case was evenly balanced. However, for the reasons given above I have concluded that the proposal should be refused consent as I consider it not in the public interest. Conditions 45. The conditions are those imposed by the council and include Condition 2 requiring the deletion of the rooftop terrace. Orders 46. My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No D/2007/601 lodged on 10 April 2007 for the erection of a "[n]ew rendered brick garage with panelled lift door to John Lane" at Lot G DP 913863, being No 199 Bridge Road, Glebe, and approved by the respondent council on 16 July 2007 subject to conditions is re-approved subject to the same conditions. 3. The exhibits except for Exhibits A, and B are returned. S J Watts Acting Commissioner of the Court sw 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.