Silvius v Leichhardt Council [2009] NSWLEC 1193

Land and Environment Court of New South Wales

CITATION : Silvius v Leichhardt Council [2009] NSWLEC 1193

APPLICANT Thom Silvius PARTIES : RESPONDENT Leichhardt Council

FILE NUMBER(S) : 11192 of 2008

CORAM: Tuor C

DEVELOPMENT CONSENT :- delete condition requiring setback of upper floor and amend condition requiring lower height KEY ISSUES: impact on streetscape and view loss

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000

CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140

DATES OF HEARING: 23 April 2009

EX TEMPORE JUDGMENT DATE : 24 April 2009

APPLICANT Mrs M Taylor, solicitor of Bartier Perry Solicitors LEGAL REPRESENTATIVES:

RESPONDENT Ms R McCulloch, solicitor of Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

24 April 2009

11192 of 2008 Thom Silvius v Leichhardt Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This is an appeal against the deemed refusal by Leichhardt Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (DA 07/0306) to demolish the existing house and structures and to construct of a new two-storey house with associated garage and landscaping at 25A Clayton Street, Balmain (the site). 2 The s 96 application seeks to change conditions 3(a) and 3(b). Condition 3(a) states: The overall height of the roof of the building is to be lowered from RL 28 to RL 27 excepting the pop-up skylight component which may maintain the proposed comparative height. 3 The applicant seeks to replace this with a condition requiring the maximum height except for the pop-up roof to be RL 27.6. 4 Condition 3(b) states: The first floor cantilever projecting towards 27 Clayton Street is to be deleted and the extent of the first floor is to be brought back to align with the setback from the boundary with 27 Clayton Street of 5.45m. The fenestration of the first floor facing Clayton Street may be adjusted so that the proposed window nominated as W20 is also relocated further away from 27 Clayton Street, without changing the proportions of styling of the windows. 5 The applicant seeks to delete this condition and revert to the original design, including the cantilever. 6 The council contends that condition 3(a) should remain as the amendment will result in unacceptable view impacts on units 3, 4 and 5/12 Thames Street. Council also contends that condition 3(b) should remain as the amendment will result in a built form that is of excessive horizontal proportion and overly dominant in relation to the other dwellings in the street. 7 Other changes are proposed under the s 96 application but these are not in dispute between the parties. Site and its locality 8 The site is located on the south-east side of Clayton Street. It has a frontage of 17m and is generally square in shape with an area of about 373.4 sqm. The site is elevated above the street on a rock outcrop and has a part one, part two-storey timber dwelling with pitched roof. There is a carport at the street level. 9 The site adjoins a three-storey multi-unit development to the south-west (12 Thames Street), which is also elevated above the street about one storey. To the north-east there is a single storey dwelling (27 Clayton Street), which is at street level and at a much lower level than the dwelling on the site. To the rear of the site is a townhouse development (14 Thames Street). The street is characterised by one and two-storey houses on small allotments at street level. Planning controls 10 The site is within the Residential zone under Leichhardt Local Environmental Plan 2000 (the LEP). The proposal is permissible with consent. The site is within the Balmain Heritage Conservation Area. Leichhardt Development Control Plan 2000 (the DCP) is also relevant. Evidence 11 The Court visited the site and heard evidence from residents who both supported and were opposed to the proposal. Those in support considered that a contemporary building of the bulk proposed was a positive addition to the streetscape. Those who objected (the occupants of units 4 and 5/12 Thames Street) were concerned about the impact of the proposal as approved by council, but considered that the proposed amendments would further impact on the amenity of their units, principally the bulk of the proposal and its impacts on views from their living, dining and kitchen areas. They acknowledge that the proposal would not impact on views from their bedrooms but stated that these areas are not used during the day and that the main areas they use were the second floor living areas. 12 The Court heard expert planning evidence from Ms D Laidlaw, for the council and Mr A Darroch, for the applicant. The architect for the proposal, Mr S Kennedy, provided evidence on the implications of the changes required by condition 3(a). The owner, Mr Silvius, provided evidence on his consultation with the owners of the units in 12 Thames Street and the effect of the changes required by condition 3(a) on his potential views.