Land and Environment Court New South Wales Medium Neutral Citation: The Rebecca L Cooper Medical Research Foundation Ltd v Marrickville Council [2011] NSWLEC 1307 Hearing dates: 2 September 2011 Decision date: 02 September 2011 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Consent Orders Legislation Cited: Environmental Planning and Assessment Act 1979; Standard Instrument (Local Environmental Plans) Order 2006; Standard Instrument-Principal Local Environmental Plan; Marrickville Local Environmental Plan 2001 Texts Cited: Marrickville Development Control Plan No. 35 Category: Principal judgment Parties: The Rebecca L Cooper Medical Research Foundation Ltd (Applicant) Marrickville Council (Respondent) Representation: Solicitors Mr P O'Brien Harris & Company (Applicant) Mr J Strati, Marrickville Council (Respondent) File Number(s): 10468 of 2011 Judgment This determination was given extemporaneously and has been edited prior to publication. 1This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Marrickville Council (the council) of Development Application No 201000300 (the application) which proposed the installation of dormer windows to the front roof slopes of Nos 48-56 Brighton Street, Petersham (the site). 2The issues between the parties have been resolved as the applicant has been granted leave by this Court to rely on amended plans and those plans have been considered and deemed acceptable by the council due to a change in its policy with regard to dormer windows. The parties are seeking consent orders from the Court. The site and its context 3The site comprises five adjoining allotments on the northern side of Brighton Street between Palace and Station Streets and consists of a terrace row of two storey dwellings, one on each of the allotments. All are currently used as single-family dwellings. A mixed-use retail residential development on the corner of Station and Brighton Street adjoins the site to the west with the locality characterised by a mix of one and two storey terrace housing. Background and the proposal 4The original application lodged with the council on 16 July 2010 sought consent to install identical dormer windows in the front roof slopes of each of the five dwellings. The purpose of the windows was described as providing additional height, light and ventilation to existing attic storage spaces within the roof area of Nos 48 and 52-56. There is no proposal to use those spaces as habitable rooms and access is provided from an existing manhole. In the case of No 50, the proposed dormer window would provide additional light, height and ventilation to an existing, approved, habitable attic space. The plans originally submitted with the application provided for windows with dimensions of 1.3m in width, 2.5m in depth and 1.8m in height. 5The council refused the application on 3 September 2010 for the following reason: The application proposes dormer windows on the front roof plane in a group of dwellings, none of which contain dormers, and where dormer windows are absent from the immediate street locality. In this respect, the proposal is contrary to Control C29 in Section B3 of Part 2B of Marrickville Development Control Plan No. 35 - Urban Housing (Volume 1) 6The applicant was granted leave by this Court to rely on amended plans. Those amendments made to the plans are a reduction in the size of the proposed dormer windows so that the dimensions are now 1.1m wide, 1.7m high and will project 1.5m less into the plane of the roof. No gutters, downpipes or eaves will be attached to any dormer window and each dormer window will be a painted timber double hung unit and the sides of each will be clad in painted weatherboard. The planning controls 7The site is zoned Residential "A" under the provisions of Marrickville Local Environmental Plan 2001 (the LEP). The proposed development is permissible with consent under the zoning provisions applying to the land. The dwellings are not heritage items and the site is not currently within a heritage conservation area however, the LEP requires consideration of heritage impacts. 8Marrickville Development Control Plan No. 35 (the DCP) applies to the site. Volume 1 of the DCP contains controls for new houses & alterations & additions to existing houses. Part B3 provides controls for streetscape and general appearance and the objectives of those controls are To ensure new development and alterations and additions to existing houses complement the height and architectural style found in the immediate vicinity, particularly where this has an identifiable visual cohesiveness. To ensure alterations and additions to existing housing do not detract from the individual character and appearance of the dwelling being added to and the wider streetscape character. 9Clauses C29-32 provide controls for dormer windows relevant to the application and state: C29 Dormer windows are not permitted on the front roof plane of a dwelling: · forming part of a group of dwellings, none of which contain dormers. OR · where dormer windows are absent from the immediate street locality. C30 Reconstruction of street front dormer windows is to be based on traditional models existing in the locality. C31 All new dormers on period housing shall be of a design which is of an appropriate architectural style and proportion of the building and the building's context. (see over for details) C32 The front dormer window shall ensure that: · the main ridge line remains intact; · attic dormer windows for Victorian style dwellings must be proportioned at a ratio of (2:1) and (1.5:1) for Federation style dwellings; · not occupy more than 1/3 of the width of the frontage; NB. dormer windows to other styles of buildings will be assessed on merit · be constructed of materials that match or complement the finished surface details of the existing building; and · the ridge of the dormer shall be at least 300mm below the main ridge of the house. The evidence 10Mr Strati for the council advises that the council has completed its strategic review of its LEP and DCP in accordance with the State Government's direction to all councils in NSW to prepare one planning instrument in accordance with the Standard Instrument (Local Environmental Plans) Order 2006 and Standard Instrument-Principal Local Environmental Plan. That review also required the preparation of one development control plan to cover all development types. The council, in reviewing its planning controls, has altered its policy position in relation to dormer windows and that position, confirmed at its meeting of 12 July 2011, is now: Council considered it appropriate to amend dDCP 2010 to allow dormer windows within heritage conservation areas and to period buildings and adopts the amended Part 4.1-Low Density Residential Development, of dDCP 2010. Further, council resolves to delegate to the General Manager authority to allow officers to make subsequent amendments to Part 8 - Heritage, of dDCP2010 consistent with the commentary in this report concerning appropriate planning controls for dormers within heritage conservation areas and on period buildings. 11The plans before the Court have been assessed by the council to be consistent with the provisions of the draft Development Control Plan and that draft plan has been endorsed by the council and will take effect on the making of the council's consolidated local environmental plan. Accordingly, the change to the plans to reflect the council's current policy position mean that the council no longer presses the contentions in the appeal. Conclusions and findings 12I am satisfied that the provisions of the draft development control plan should be given considerable weight as the plan has been the subject of public consultation and been endorsed by the council. The parties advise that all of the proposed conditions are agreed and therefore, I find that the consent orders sought should be made. Orders 13By consent, the Court orders are: (1)The appeal is upheld (2)Development Application No 201000300 for the installation of dormer windows to the front roof slopes of Nos 48-56 Brighton Street, Petersham is approved subject to those conditions included in Annexure A (3)The exhibits, other than exhibit A, are returned. Sue Morris 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: 26 October 2011