Land and Environment Court of New South Wales CITATION : Barua v Leichhardt Council [2008] NSWLEC 1472 Applicant: Barua Pty Ltd PARTIES : Respondent: Leichhardt Council FILE NUMBER(S) : 10728 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application :- fitting into conservation area streetscape DATES OF HEARING: 20 November 2008 and 21 November 2008 DATE OF JUDGMENT: 25 November 2008 Applicant: LEGAL REPRESENTATIVES: Mr P Clay, barrister instructed by Mr A Whealy, solicitor of Gadens Respondent: Ms R McCulloch, solicitor of Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 25 November 2008 10728 of 2008 Barua Pty Ltd v Leichhardt Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Leichhardt Council of a development application to demolish the existing service station and erect a mixed retail and residential development containing four shops, eight apartments and 16 car spaces on lots 3 and 4 DP 223, known as 418 Darling Street, Balmain. The site 2 The site is on the southern side of Darling Street and has a rear boundary to Little Arthur Street. Its width is 24m and its area is 638m2. A service station now stands on it. To the east there is a pair of two-storey terrace houses. Further to the east is a building with a sawtooth roof and a parapet towards Darling Street. To the west is a row of five two-storey terrace houses, the most western of which is at the corner of Arthur Street. Little Arthur Street has the character of a service lane, with properties on either side having frontages either to Arthur Street or to Darling Street. Little Arthur Street has no uniform character. The proposal and its history 3 The applicant proposes to demolish the existing service station and erect a mixed-use building with shops on the ground floor, four apartments each of the first and second floors and a basement car park for 16 cars below ground. 4 The applicant lodged the application on 24 December 2007. Following notification the council received seven objections. In May 2008 the council received a report from its planning staff recommending approval. The council did not accept the recommendation. Amended plans were re-notified in June 2008, eliciting three objections. In July 2008 the council received a second report from its planning staff, again recommending approval. The council did not accept the recommendation. The applicant lodged an appeal against deemed refusal in July 2008. Relevant planning controls 5 Local Environmental Plan 2000 (LEP 2000) zones the site Business, a zone in which mixed development is permissible. The LEP establishes the Heritage Conservation Area within which the site is located. 6 State Environmental Planning Policy 65 (SEPP 65) applies to the development. The council takes no issue with any matter arising out of that instrument. 7 Development Control Plan 2000 (DCP 2000) contains detailed planning controls. It staters that developments at the interface between Business and Residential zones, must take into account the form of the residential development. The DCP establishes distinctive neighbourhoods, including the Darling Street neighbourhood in which the site is located. It allows for the contemporary redevelopment of sites, where it is complementary to the existing heritage streetscape and character/scale of the neighbourhood. With respect to roof architectural form, it states "preferred roof forms are hipped and gabled with a pitch of 30o and 45o. Other roof forms may be appropriate and these will be considered at the discretion of the council." 8 DCP 2000 establishes a building envelope to this site from the front, though it was a matter of debate whether the envelope applied also from the rear. 9 In respect of solar access to private open spaces, DCP 2000 states that Where solar access already exists to the private3 open space of adjacent dwellings, ensure it is maintained over a minimum of 50% of the private open space for a minimum period of 3 hours. Matters in contention 10 The council filed its Statement of Contentions containing six matters. During the hearing these were reduced to two, which are best expressed as follows: · The proposal does not fit into the Darling Street streetscape. · The proposal is too big towards Little Arthur Street. The objectors' evidence 11 The Court heard the evidence of Ms J Lunsmann and Ms K Hamey, both members of the Balmain Association, who were concerned about the proposal's appearance towards Darling Street. Since this is also one of the council's contentions, it is discussed below. 12 Ms J Fletcher, who lives at 410 Darling Street adjoining the site to the east, said that she was concerned about impact on her rear yard. I am satisfied from the drawings that the rear yard will not be overlooked, though it will receive additional overshadowing. The council's planning expert, Ms D Laidlaw, said that this would be the case with almost any development of the site; so she does not think that the impact justifies refusal. 13 Mr V Morrison, who lives at 31 Arthur Street and whose rear yard faces Little Arthur Street, said that he was concerned about being overlooked and overshadowed. Mr T Stevens, who lives at 35 Arthur Street, had the same complaint. Both rear yards will be overshadowed in the mornings at mid-winter, though they will continue to receive sunlight in the afternoons, thus meeting the requirements of DCP 2000. The impact is significant and, from the point of view of the objectors, regrettable. Given the fact, however, that the proposal meets all planning controls, I do not think that it justifies refusal. 14 The objectors also complained that the proposal is too bulky and it was this aspect of their objection that received the strongest support from Ms Laidlaw. The contention is discussed below. Appearance to Darling Street 15 The council's heritage expert was Mr R Staas, a heritage architect. He pointed out that, at 24m, the site is very wide in the context of Darling Street properties, and therefore poses a design challenge for any modern building trying to fit into the street. Mr Staas thought that the main task for the proposal is not to draw too much attention to itself, and that in this it has succeeded. He considered that the proposal is an acceptable solution; not the best solution but one that gets over the line. 16 Somewhat unusually, the council's other expert, Ms Laidlaw, took issue with Mr Staas. In her view, the designer of this proposal had two options. One was to design a building with a parapet, for which there was an existing example to the east of the site. The other was to design a two-storey building with a sloping roof, which is what DCP 2000 encourages. Mr Staas disagreed; in his opinion, a building with a parapet on such a wide site would be too noticeable and attention seeking. 17 It seems to me that the only conclusion one can draw from the disagreement between Mr Staas and Ms Laidlaw is that opinions about appearance within a streetscape are highly subjective. Had the council had a third expert, he/she may have had a third opinion on the matter. In the event, I accept Mr Staas' opinion for two reasons. First, a new building with a 24m long parapet would appear intrusive in the streetscape. (The nearby existing building with a parapet is much narrower.) Second, Ms Laidlaw's alternative suggestion, a new building with a sloping roof (presumably sloping at the same pitch as the adjoining terrace houses) gets close to "mimicking" the existing form, something that most heritage architects frown upon. The sloping-roof-solution would also deprive the applicant of a great deal of floor space, without much public benefit being achieved. 18 I accept Mr Staas' opinion that the proposal is acceptable in the streetscape of Darling Street. I am reinforced in this conclusion by the knowledge that the proposal fits within the building envelope established by DCP 2000. The building envelope serves to prevent major environmental crimes in the streetscape, even if it does not always stop minor misdemeanours. Appearance to Little Arthur Street 19 In the applicant's submission, the building envelope established by DCP 2000 applies only to Darling Street. In Ms Laidlaw's opinion, it applies also to Little Arthur Street; however, it is reasonable not to apply it in this case. Although I tend to the view that it applies only to Darling Street, given Ms Laidlaw's evidence, I do not need to choose between the two positions. 20 Ms Laidlaw's major charge against the proposal, as it appears from the rear, is that it is too big and bulky. However, if there is no building envelope from Little Arthur Street (or, alternatively, it does not need to be applied), then the only control against which excessive bulk can be tested is the maximum FSR of 1.5:1, with which the proposal complies. I do not think that there exists any character or scale in Little Arthur Street that is possible to maintain. 21 Ms Laidlaw pointed out that the ground level plans include undercroft and enclosed spaces that are wasted and that this boosts the floor space at the top level, where it does the most damage. I have looked at the plans with this thought in mind, and I cannot think of anything useful to put in those unused spaces. LEP 2000 requires that only commercial use can be put at the ground level and the shops, as they are designed, are sufficiently large. I do not think that the unused spaces at this level are a subterfuge for getting additional floor space at the top level. I think they are there because nothing useful can be put into them. 22 I accept the council's position that the applicant has no "right" to the maximum floor space. However, where a local environmental plan indicates a maximum FSR, it is reasonable for applicants to expect that, on sites without unusual constraints, they can achieve something in the same order. 23 For the above reasons the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing service station and erect a mixed retail and residential development containing four shops, eight apartments and 16 car spaces on lots 3 and 4 DP 223, known as 418 Darling Street, Balmain is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 7, A and C. __________________ Dr John Roseth Senior Commissioner 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.