Land and Environment Court of New South Wales CITATION : Marsh Cashman v Leichhardt Council [2008] NSWLEC 1195 Applicant: Marsh Cashman Koolloos Architects PARTIES : Respondent: Leichhardt Council FILE NUMBER(S) : 11009 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application :- DATES OF HEARING: 06/05/2008 and 12/05/2008 DATE OF JUDGMENT: 13 June 2008 Applicant: LEGAL REPRESENTATIVES: Mr D Miller, barrister instructed by Ms E Hillier, solicitor of Gadens Lawyers Respondent: Ms R McCulloch, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 13 June 2008 11009 of 2007 Marsh Cashman Koolloos Architects v Leichhardt Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Leichhardt Council (the council) of a development application to demolish the existing house and construct a new three-storey house on lot A DP 322150, known as 3A Ballast Point Road, Birchgrove. The council identified three major matters in contention; however, during the hearing the parties reached agreement on all but two relatively minor design aspects of the proposal. Given that the points on which the parties had agreed met the objectors' legitimate concerns, the Court's decision was required only on the two aspects on which agreement was not reached. The site 2 The site is on the northeast side of Ballast Point Road and extends to Wharf Road. Its frontage is 10m, its depth is 34m, and its area is 303m2. It falls 5m from front to rear. A single-storey house is now located on it, with a garage at a lower level facing Wharf Road. There are a pool and terrace on the garage roof. There is no significant vegetation on the site. The proposal and its history 3 The applicant proposes to demolish the existing house and leave the existing garage, removing, however, the pool and terrace now on the garage roof. The height of the garage wall to Wharf Road is to be lowered and the garage door decreased in width. The new dwelling is of three levels, with the lower ground floor being in an area that is a sub-floor area in the existing dwelling. 4 The applicant lodged the development application in May 2007. Following notification, the council received eight objections from neighbours and nearby residents. In October 2007 the council determined the application under delegated authority on the basis of a planning report that recommended refusal. The applicant lodged the appeal a few days before that decision, on the basis of deemed refusal. Relevant planning instruments and policies 5 Local Environmental Plan 2000 (LEP 2000) zones the site Residential and identifies the surrounding area as a Conservation Area. There are several heritage items nearby, though there was no contention that the proposal's impact on these might be adverse. Clause 19(2) establishes a maximum Floor Space Ratio (FSR) of 0.7:1 for the site. Clause 19(3) establishes a minimum landscaped area of 40% for the site. 6 Development Control Plan 2000 (DCP 2000) and Development Control Plan 21 – Wharf Road (DCP 21) apply to the site. DCP 2000 identifies Wharf Road as being of high conservation value. Following the near-agreement of the parties reached during the hearing, it was common ground that the proposal either complies with the requirements of the development control plans, or, where there was no full compliance, the breaches were justified. Matters in contention 7 In its amended Statement of Contentions the council identified three major issues: · The FSR exceeds the maximum permissible. · The landscaped area is less than the minimum required. · The impact on Wharf Road and neighbours is unacceptable. 8 As mentioned above, during the hearing the planning experts reached near-agreement on the way the proposal should be amended. The council's planning expert, Ms D Laidlaw, agreed that, as a result of the amendments that she suggested and the applicant accepted, the issues of FSR, landscaped area and impact were satisfied. The applicant's expert, Mr A Darroch, who thought that the issues were invalid even without the amendments, naturally agreed. I accept the joint evidence of the experts. The agreement between Ms Laidlaw and Mr Darroch 9 The written version of the agreement came to the Court as Exhibit 6. Ms Laidlaw and Mr Darroch agreed on 13 amendments to be made to the proposal. In addition, Ms Laidlaw suggested two further amendments, which Mr Darroch resisted. 10 The following are the 13 amendments on which agreement was reached: 1. East wall of pool to be RL 17.9m (1.8m above level of No 3). 2. Stair to garage to be pushed into the house and wall reduced to RL 16.6m adjacent to No 3. 3. Garage door to be reduced to 4.8m width. 4. Hedging above garage to be reduced to 1m. 5. Garden to extend at RL 16.6m to boundary with No 3 with hedge of suitable planting to a height of 1.5m. Planting to step up to RL 18m adjacent to relocated terrace. 6. Terrace and lower living area to be cut back 1.6m to be in line with existing terrace. (Consequential amendments to lounge are anticipated.) 7. Amendments to deck to the requirements of council's draft condition 5. Balustrade to Wharf Road to be removed. 8. Front garden feature to be of recycled wharf timber to detail in amended plans. 9. Fenestration changes to front and side elevations to detail in amended plans. 10. Agreement on floor to ceiling height in sub-floor area (the written agreement does not specify the height). 11. The fence line on the eastern boundary is to be corrected. 12. Council's draft condition requiring acoustic treatment to terrace to be deleted (since terrace is now cut back). 13. New condition requiring trailing plant in planter over garage door. 11 The two suggestions by Ms Laidlaw to which the applicant did not agree were: 1. The lap pool should be set off the eastern boundary by sufficient distance to provide a landscaped strip to the boundary. 2. The western wall should be set back by 900mm instead of being attached in part to the eastern wall of No 3 (which is on the boundary). 12 In effect, these two requirements are the only ones that require the Court's decision. As concerns the lap pool, I agree with Ms Laidlaw that, at its present 15m length, it comes too close to the boundary with 1 Ballast Point Road. However, the way her requirement is expressed (provision of landscaped strip) is inexact. If the length of the pool were reduced from 15m to 12m, it would allow most of the pool's length to be screened by landscaping. The Court's requirement is therefore to move the pool's edge 3m back from the Wharf Road boundary. 13 As concerns the position of the western wall, Ms Laidlaw's reason for the requirement was to achieve visual separation between the Victorian terraces to the west and the proposed new building. It seems to me that visual separation is achieved with the present design since the attachment occurs only for a small part of the wall. Ms Laidlaw agreed that, the attachment would not be perceived from Wharf Road (because of the levels) and would be seen only from one point in Ballast Point Road directly in front the site's western boundary. She agreed that the separation is not necessary at the lower ground floor level and would be difficult to achieve at the ground floor level. Therefore it could be practically achieved only at the first floor level and it would require major replanning at that level. In my opinion, the disadvantages to the applicant outweigh the public benefit of visual separation, which can be perceived only from a single position in Ballast Point Road. The suggested requirement is therefore not imposed. The objectors' evidence 14 The Court heard the evidence of six objectors. Ms Helen Carter, who lives at 3 Ballast Point Road adjoining the proposal to the west, said that she objected to the proposed raised terraces above the retained garage, as these would reduce her privacy and amenity. She was also concerned about the proposal to attach the new building to her eastern wall, which is on the boundary. Finally she considered the modern architectural style inappropriate for Wharf Road. 15 Mr Patrick Conaghan, who lives at 5 Ballast Point Road, on the western side of Ms Carter (ie one house removed from the proposal), said that he would also suffer reduced amenity (albeit to a lesser extent than the immediate neighbour, Ms Carter). His major objection, however, was to the modern architectural style. 16 Mr Giuseppe Barca, who spoke on behalf of his mother, Mrs Giulia Barca, who lives at 7 Ballast Point Road, said that he had three main objections: to the excessive FSR, the adverse impact on the streetscape, and the elevated terraces towards Wharf Road. 17 Mr Roger Parkes, who lives at 15 Ballast Point Road, removed from the proposal, said that the architectural style was entirely inappropriate. He also objected to the excessive FSR. 18 Mr Diana Ryall, who lives at 3 Wharf Road, had similar concerns to those who gave evidence before her. She added that she found the drawings of the proposal unclear. 19 Ms Ruth McLeod, who lives at 7 Wharf Road, pointed out the importance of Wharf Road as a pedestrian street. In her opinion, the major problem was the bulk of the proposal. 20 In summary, the objectors had three major concerns: · The elevated terraces in front of the traditional building line on the Wharf Road side would diminish the amenity of neighbours. · The FSR of the proposal was unjustifiably above the permissible. · The modern architectural style was unsuitable. 21 The amendments agreed to by Mr Darroch and Ms Laidlaw during the hearing eliminated all the raised terraces and pulled them back to the established building line. In my opinion (and in that of Ms Laidlaw) these changes meet the amenity concerns of neighbours, in particular those of Ms Carter. Her future amenity will not be markedly different from that she currently enjoys. 22 The question of FSR is dealt with below. 23 As regards architectural style, there was no suggestion from any of the experts, including the council's heritage adviser, Mr Brian McDonald, that the proposal should not adopt a contemporary style. The alternative would be to imitate the Victorian style of the nearby terraces, and this could never look genuine. I note that the southern side of Wharf Road contains a mixture of styles, including some modern buildings. 24 I note that the applicant had consulted Mr McDonald about the design of the building, which, while appearing as a modern building, has several design features that reflect aspects of its Victorian neighbours. FSR and landscaped area 25 It was common ground that the proposal's FSR was 1.14:1, a figure that is considerably higher than the permissible 0.7:1. The applicant submitted an Objection under Sate Environmental Planning Policy 1 – Development Standards (SEPP 1). The justification for the departure from the standard was as follows: · Much of the additional floor space is in the retained garage (the visual impact of which is now to be reduced substantially) and the subfloor space (which cannot be seen). · Most of the neighbouring buildings have similar bulk to the proposal. · The council has determined recent applications in the street with FSR above the permissible limit. 26 Ms Laidlaw's initial position was that the larger than permissible FSR was not justified because it resulted in adverse impact on neighbours and the streetscape of Wharf Road. However, as a result of the agreement between her and Mr Darroch, she was satisfied that those impacts were now acceptable. Consequently she agreed that the variation from the FSR standard was justified. Landscaped area 27 Ms Laidlaw's evidence in respect of the variation of the landscaped area standard was the similar to that in respect of the FSR standard. I accept her evidence. Consequently the Objections to both standards are well founded and the standards may be varied. Conclusion 28 Given the agreement of the two experts on all important aspects of the proposal, nothing stands in the way of the proposal's approval. Orders 1. The appeal is upheld. 2. Development application to demolish the existing house and construct a new three-storey house on lot A DP 322150, known as 3A Ballast Point Road, Birchgrove is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 5, 6 and A. _________________ 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. 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