74B Trafalgar Street Pty Limited v Leichhardt Council [2010] NSWLEC 1358

Land and Environment Court of New South Wales

CITATION : 74B Trafalgar Street Pty Limited v Leichhardt Council [2010] NSWLEC 1358

APPLICANT 74B Trafalgar Street Pty Limited PARTIES : RESPONDENT Leichhardt Council

FILE NUMBER(S) : 10445 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- consruction of two attached dwellings and subdivision whether roof form minimises overshadowing and is consistent with desired future character.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy no 1 – Development Standards Leichhardt Local Environmental Plan 2000

DATES OF HEARING: 9 & 15 November 2010

EX TEMPORE JUDGMENT DATE : 16 November 2010

APPLICANT Mr P Rigg, solicitor of Norton Rose Australia LEGAL REPRESENTATIVES: RESPONDENT MS J Walsh, solicitor of Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

16 November 2010

10445 of 2010 74B Trafalgar Street Pty Ltd v Leichhardt Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an appeal against the refusal by Leichhardt Council (council) of a development application (D2009/474) under the Environmental Planning and Assessment Act 1979 for remediation of the site, demolition of existing buildings and construction of two new dwellings with Torrens Title subdivision at 74B Trafalgar Street, Annandale (the site). 2 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions. 3 The original application proposed a hip roof which extended the length of the proposed building. Leave was granted for the application to be amended to reduce the pitch of the main roof to thirty degrees with a half hip element, provide a separate front verandah roof and rear skillion roof and lower the floors of both levels by 200mm. Evidence 4 The Court visited the site and heard evidence from the adjoining owner at 3 Collins Street. Her principal concern is the loss of solar access to her rear north facing window. 5 The adjoining owner at 3A Collins Street was also concerned about solar access and raised issues about the heritage significance of the existing building and the bulk and privacy impact of the proposal on the garden area of 3A Collins Street. These matters were not raised as issues by council as there will be no material impacts from overshadowing, bulk or privacy on 3A Collins Street. 6 The Court heard expert planning evidence from Ms D Laidlaw, for the council, and Mr A Rowan for the applicant. Mr R Staas, for the council, and Mr J Phillips, for the applicant, prepared a joint report on heritage issues for the original application and suggested alternative options but were not required for cross examination. 7 The key issue between the parties is the loss of solar access to 3 Collins Street and whether this should be minimised by an alternate roof form. 8 Ms Laidlaw's position is that the proposal does not comply with the floor space ratio control (FSR) in cl 19(2) of Leichhardt Local Environmental Plan 2000 (LEP 2000) or the side setback control in Part B1.2 of Leichhardt Development Control Plan 2000 (DCP 2000). Although the overshadowing does not result directly from these non compliances, Ms Laidlaw considers that to achieve the objectives of these controls, the overshadowing should be minimised by a skillion roof behind a parapet. 9 Mr Rowan considers the half hip form, now proposed, to be acceptable and that the overshadowing impacts are minimised given the nature of the room affected (a closed-in verandah used as a living area) and the amount of glazing to the window that will retain solar access. 10 Further, Mr Rowan considers the half hip roof form is consistent with the desired further character for the Trafalgar Street Distinctive Neighbourhood in DCP 2000. 11 Both planners agree that the proposal will comply with the overshadowing provisions of Part B3.1 of DCP 2000. They agree that the north facing window of 3 Collins Street will receive sunlight over more than fifty per cent of the surface area for about four hours (9.40am (56.9%) to 1.35pm (53.2%)) in mid-winter. Between 9am and 9.40am in mid-winter the window would receive more solar access with the parapet scheme than from the proposal. 12 Mr Staas and Mr Phillips agree that the roof form should be consistent with Victorian and Edwardian roof lines in the area. They agree that either a hipped roof, a skillion behind a parapet or a small half hip on any pitched roof are acceptable. They note that the presentation from Collins Street of the parapet would not be as acceptable as a gabled roof form.