Land and Environment Court New South Wales Medium Neutral Citation: Paul Anthony Hayes v Leichhardt Municipal Council [2011] NSWLEC 1188 Hearing dates: 6 June 2011 Decision date: 07 July 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Preliminary findings made Catchwords: Development application - Terrace house extension - excessive bulk & scale - rear BLZ - irregular lot shape - conservation area - precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Category: Procedural and other rulings Parties: Paul Anthony Hayes (Applicant) Leichhardt Municipal Council (Respondent) Representation: Solicitors Mr P Hayes (Applicant in person) Ms J Walsh (Respondent) File Number(s): 10205 of 2011 Judgment Background 1This appeal was lodged against council's refusal of a development application for alterations and additions to an existing terrace located at 36 Carlisle Street, Leichhardt. 2The proposed works involve the following extensions at the rear: * Ground floor; retention of two front rooms and demolition of dining room, kitchen and bathroom to construct new addition involving a kitchen, laundry and living room. Externally, pave rear yard and provide car parking at rear of premises. * First floor; modification of two front bedrooms with addition of hallway and construct new addition of hallway, bathroom/ensuite and new bedroom 1. 3For the appeal, the council identified a number of issues, which are summarised as follows: * Excessive bulk and scale resulting in unacceptable impacts. * Non - compliance with the rear building location zone (BLZ). * Non - compliance with minimum side setback controls * Non - compliance with desired future character statement. The site 4The site comprises an irregular L-shaped allotment, which is described as Lot 1 DP 33855. It has a 5.715m frontage to Carlisle Street and a total area of 472.7 sq m, as shown in Annexure A. 5There is a two storey house on the front of the site, which has a single storey rear addition. There is a 3 m wide driveway along the eastern side of the dwelling, which provides access to the rear of the subject and neighbouring properties. The northern part of the driveway is part of the subject lot and it has the benefit of a right of carriageway over the other part. 6The L-shaped configuration results in the subject site having a similar street presentation as its neighbours, which have depths in the order of 35m. The additional area of the subject lot then extends for approximately 25m behind lot (house numbers) 38 - 48 and is mainly used as a private open space area. Planning controls 7The site is subject to number of controls including the Leichhardt Local Environmental Plan 2000 under which it is in the 'Residential' zone and the development is permissible with consent. Clause 7(3) requires the relevant objectives of the plan to be considered. 8Clause 13(2) contains the general objectives for the built and natural environment and amenity being to encourage the design of buildings, structures and spaces, which are compatible with the character, form and scale of the area. The following were identified as relevant: (a) protect and enhance the area's natural features, character and appearance, and (b) protect, conserve and enhance the area's heritage, and (c) provide an environment meeting the principles of good urban design, and (d) maintain amenity and contribute to a sense of place and community 9Clause 17 contains objectives in relation to housing and refers to the associated development standards on the following basis: * Maximum FSR of 0.5:1, * Minimum landscaped area of 40% of site area of which 25% must be soft landscaping, 10The site is located within a Heritage Conservation Area under the LLEP and clause 15 contains the objectives related to heritage conservation including: (a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation, (b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines, (c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items... 11Clause 16(8) of the LEP provides that: (8) Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to: (a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or Aboriginal site that would be affected, and the contribution it makes to the conservation area, and (b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development. 12Associated development controls are contained within the Leichhardt DCP 2000, under which the site is within the West Leichhardt Distinctive Neighbourhood, where the following guidelines apply: * Building Elements : maintain and encourage the predominant use of hipped and gabled roof forms, * Urban Form : promote land uses and urban design that enhance and contribute to the character and identity of the neighbourhood whilst protecting heritage items and conservation areas that combine to help create that character; preserve and enhance the predominant scale and character of dwellings in this precinct, consisting of mostly single storey Victorian and Federation - style dwellings, with more dense development in appropriate areas... 13In addition to this, Part B1.2 of the DCP contains the following controls: * Rear Building Location Zone : Development is required to be located within a line drawn between the rear setbacks of adjoining dwellings. The BLZ is determined only by the main buildings on the adjacent properties, the location of structures including ancillary sheds, garages, external laundries, toilets or other free standing structures is not relevant to determining the BLZ. The BLZ applies to two storey development and first floor extensions to existing dwellings and provides that: "in most circumstances development above the first floor may not occupy the entire area of the BLZ, due to the resulting bulk and scale issues." * Side setback : Development is required to sit within a plane measured from a height of 2 . 4 m of ground level along the side boundaries, then projected at 45 degrees over the site. The evidence 14A detailed joint planning report was presented by: * Ms D Laidlaw; consulting planner for council. * Ms S Ashley; architect for the applicant. Bulk and scale 15The threshold issue in this matter concerns the bulk and scale of the proposed first floor extension to be located at the rear of the existing dwelling. Whilst the proposal involves alterations and extensions at the ground level, I understand these are acceptable. 16Having considered the context of the L-shaped lot, the experts initially agreed that: * The proposal complies with the LEP FSR standard in Clause 19(2) with (0.37:1 proposed against 0.5:1 allowed) and the LEP Landscaped Area standards in Clause 19(3)(a) and (b) (66% proposed compared to the minimum required of 40%, and with a soft landscaped area comfortably in excess of the minimum 10% of site area required). * The existing terrace forms part of a row of two storey terraces that is relatively intact in terms of its presentation to Carlisle Street, with a variety of single storey extensions to the rear with no existing two storey extensions. 17However the experts disagree as to whether the development should be assessed against the 'effective' area of the site i.e. that part forming the immediate curtilage of the dwelling and minus the part referred to as the 'dog leg' portion, (the effective area being similar to the site area of the adjoining row of terraces to the east and west of the subject property). 18Notwithstanding the numerical compliances, Ms Laidlaw does not support the proposal because she considers the 'dog leg portion' does not form part of the immediate curtilage of the site and it reads as a separate parcel of land. Consequently she considers that the visual bulk of the proposed upper level extension will appear excessive in the context of the 'effective' area as opposed to the legal site area. 19According to Ms Laidlaw, if the development is assessed against the 'effective' site area it would have a building area to 'site' area of approximately 1:1 and this gives an indication of the proposed excessive bulk on the site. 20Furthermore, Ms Laidlaw says that any approval of this development would inevitably establish parameters by which other owners along this terrace row would expect their proposals for similar two storey extensions to be assessed and these other terraces in this row occupy a site area that is similar to the 'effective' site area of the subject property. 21Against this Ms Ashley says that the controls do not refer to the notion of 'effective ' area and it is therefore inappropriate to adopt a contention that the calculation is distorted by land that by definition must be included. 22The experts also disagree as to whether the impact of the proposal, in terms of its visual bulk impact to the neighbouring properties, as well as in relation to the architectural integrity of the existing dwelling house is acceptable. 23Ms Laidlaw does not consider it acceptable because the first floor extension projects beyond the line of the single storey extension on the adjoining property and in general is disproportionately large relative to the scale of the existing dwelling and to the 'effective' area of the site. She says this creates excessive bulk to the property to the west and also the excessive bulkiness is reinforced by non-compliances with the side setbacks and BLZ controls. Consequently, she would support a first level extension which is reduced by a minimum of 2.5 - 3 m. This would practically line up the line of the ground level building . 24However Ms Ashley does not consider this reasonable because of the proposals general numeric compliance. If the extension was to be reduced by 2.5 - 3 m, Ms Ashley says it would likely cause privacy problems for the neighbouring backyards. Also, this would be an unreasonable restriction on the development expectations of the existing property owners. Building Line Zone (BLZ) 25The planners disagreed on whether the first floor extension breached the rear BLZ and whether the variation criteria in Part B1.2 are met. Whilst preferring the aforementioned 2.5 - 3 m reduction in the upper level, Ms Laidlaw acknowledges that the wording of the BLZ control is ambiguous but says that in her experience council has always applied the BLZ on a floor by floor basis whereby the first level is taken as the ground level. 26However Ms Ashley refers to Element 2 that states: "in most cases development above the first floor may not occupy the entire area of the BLZ", and says that this does not stipulate that first floors should not occupy the whole of the ground floor BLZ area. Furthermore, there is no reference to a first floor level BLZ and therefore no breach. Side setbacks 27In response to the side setback issue, the experts disagreed on the following points: * as to whether the proposal breaches the side setback controls in part B1.2 of DCP 2000, and * as to whether the breach is acceptable in the circumstances of this development proposal. 28Ms Laidlaw acknowledges that whilst there are breaches in the side setbacks on both the western and eastern sides, the controls contemplate some variations subject to satisfying designated environmental criteria. In this case, she considers the excessive bulk of the non-complying upper level and the associated exceedence of the side setbacks is not consistent with the existing pattern of development in this immediate neighbourhood. 29Against this, Ms Ashley notes that the controls encourage varied setbacks in order to provide articulation and relief to side elevations as well as enhance other environmental considerations. Accordingly, she says that there is no change to the western side and the eastern side will only change in respect of the rear extension where it will be in line with the existing two storey dwelling. 30In addition to this, Ms Ashley considers that the carriageway to the east of the subject property is a 'laneway' and that this allows the side setback control to be relaxed. Heritage 31As noted, the site is within a Heritage Conservation Area and therefore subject to the provisions of cl 15 and cl 16(8) of the LEP. One of the relevant objectives is that development should protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt. Also that undesirable incremental change be prevented, which reduces the heritage significance in the conservation areas. Clause 16(8) then requires an assessment of the impacts of carrying out certain works. 32Insofar as the planners expressed disparate opinions, Ms Laidlaw says that as the subject building is an integral part of the group of terraces, the proposed two storey extension would be readily visible from the rear of these properties. Therefore any extension should be sympathetic. 33Alternatively, considers the proposal is consistent with the Australian ICOMOS Charter - Burra Charter, for heritage conservation. She supports this opinion by application of the associated guidelines. Conclusions 34Having carefully considered the disparate opinions responding to the contentions, the submissions and undertaken a view, I do not consider this application merits consent in its current form because it is of excessive bulk and scale in the prevailing context. 35In my assessment the threshold issue concerns the bulk and scale of the upper level extension, which the council submits is excessive. As a starting point, I accept that the lot is of unique L-shape and size in the immediate location. This additional size of the lot then enables the proposed extension to achieve comfortable numerical compliance with the FSR and other controls. 36However, it has often been stated by the Court that mere numerical compliance does not guarantee approval, particularly where other qualitative controls are required to be satisfied. That is the case in the subject matter because the raft of controls that apply to the site, also require the consent authority to be satisfied that there is reasonable compliance with the relevant objectives. 37In assessing the character of the area, I accept that the subject property presents as an integral part of the row of terraces and that these terraces include a variety of extensions at the ground level but there are no upper level rear extensions. It is also apparent to me from the view that the subject property appears to have a similar curtilage to its neighbours because of the continuation of the rear boundary line fences. Consequently, 'dog - leg' component appears to me as a separate lot. 38It also appears to me that there is a reasonable degree of openness and access in this rear yard area, which allows a range of viewing opportunities of the rear of this group of terraces and therefore any incremental changes should be carefully assessed. 39Because of this apparent 'detachment' within the subject lot, I think there is merit in considering the "effective area" proposition put by Ms Laidlaw, as this materially influences the actual visual character of this neighbourhood. On this basis, the FSR including the upper level extension would be approximately 1:1 according to Ms Laidlaw, which is double that envisaged by the DCP control. 40Contrary to this, I note that Ms Ashley calculates the FSR to be 0.76:1, but says that this is not a proper application because the controls do not distinguish this "effective area" proposition. Nevertheless, this would still exceed the 0.5:1 DCP control that should apply to neighbouring properties. 41However, as stated previously the qualitative controls must also be satisfied. In particular cl 13(2) of the LEP endeavours to protect and enhance the areas natural features, character and appearance. Also, cl 17 requires that new housing development comply with development standards to achieve an acceptable degree of compatibility with the pattern of surrounding buildings. 42In my assessment, the desired outcomes for these objectives would not be adequately achieved because the proposed rear extension, being the first such extension, would materially change the rear appearance of the group of terraces in a way that does not enhance the character of the area. 43The extent of the proposed upper level is dependent on the application of the BLZ control in Part B1.2 of the DCP. Whilst I agree with Ms Laidlaw that the terminology is ambiguous, nevertheless the wording of this part refers specifically to two storey development and first floor extensions. It then states, " in most circumstances development above the first floor may not occupy the entire area of the BLZ, due to bulk and scale issues ". I interpret this as the 'ground level' being the first level and the 'upper level' being the second level by reference to the two storey context. 44Consequently, the application of the controls on this basis does not envisage the 'second/upper' level occupying the entire area of the BLZ so that there is a scaling down effect from the original two storey terrace building to reduce the apparent bulk. 45Whilst there was some disagreement between the planners about the extent of the 'ground/first level' BLZ, I am satisfied to rely on the planners agreement that the extent of the work at this level represents a reasonable BLZ and is acceptable. However in the subject context, I think it then reasonable to apply the provisions of the DCP and require some setback of upper level, so that the apparent bulk and scale is reduced. In this regard, I am satisfied to rely on the opinion of Ms Laidlaw for a minimum 2.5m setback rather that that of Ms Ashley who supports no setback. 46Even though the DCP contains guidelines for variations of the BLZ, I do not consider the proposed variation is justified in the circumstances, primarily because of the resultant visual bulk impact of the non-complying element. 47In reaching this conclusion I have also considered the evidence presented regarding the possibility of the approval of this application creating an undesirable precedent in terms of the findings of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 where he said: 28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 48I consider it reasonable to apply this line of authority in the subject matter because I think there is a strong possibility that the neighbouring terrace owners could follow with similar applications and the cumulative result would be contrary to the desired outcome for this area. The approval of the subject application at the effective end of the row would most likely establish the control point for the second level BLZ, which I consider excessive and not in accordance with the intent of the DCP control. 49Insofar as there was also disagreement about the impact of non-compliance with the side setback controls, I accept that in reality the main practical concern is along the more exposed eastern boundary. Accordingly, I accept Ms Laidlaw's opinion that some relief should be provided by a reduction in the length of the non-complying upper level. 50The remaining issue concerns the proposals compliance with the heritage/conservation area provisions. Notwithstanding that the extension is at the rear of the row of terraces, nevertheless as stated previously, I consider the proposed extension is of excessive bulk and scale, which does not "protect, conserve and enhance the character of this neighbourhood within the conservation area. I rely on the opinion of Ms Laidlaw in this regard that the proposal represents an undesirable incremental change. 51In summary then, I consider the proposal is of excessive bulk and scale to merit consent in its current form. However I note that the option of reducing the upper level extension by 2.5 - 3m was discussed during the hearing and whilst it does not totally satisfy the applicant's requirements, nevertheless the evidence indicates to me that this would represent a reasonable balance between the competing private and public interests. 52Accordingly the applicant is allowed three weeks until 29 July 2011 to consider these findings and advise the Council and the Court whether it wishes to make such minor amendments before final orders are made. R Hussey Commissioner of the Court 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. Decision last updated: 11 July 2011