Land and Environment Court New South Wales Medium Neutral Citation: Kiprovski v Leichhardt Council [2014] NSWLEC 1086 Hearing dates: 12 May, 2014 Decision date: 15 May 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. D/2013/534 for alterations and additions to an existing dwelling is refused. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a Victorian terrace house; impact on the heritage significance of the Balmain Conservation Area. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Category: Principal judgment Parties: Michelle Kiprovski (Applicant) Leichhardt Council (Respondent) Representation: Mr G. McKees Solicitor (Applicant) Ms R. McCulloch Solicitor (Respondent) McKees Legal Solutions (Applicant) Pikes & Verehers Lawyers (Respondent) File Number(s): 10128 of 2014 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/2013/534 for alterations and additions to an existing dwelling (the proposal) at 21 Davidson Street, Balmain (the site), by Leichhardt Council (the Council). Issues 2The Council's contentions in the matter can be summarised as: * The proposal is an unacceptable, inauthentic alteration and addition to a contributory building and will have a detrimental impact on the heritage significance of the Balmain Conservation Area; * The proposal has unacceptable amenity impacts on neighbouring properties. 3The applicant disputes deferred commencement conditions of consent 1(a) to (d) (exhibit 6) requiring on site detention or on site retention for rainwater reuse, on the basis that there is no increase to the impervious area of the site and deferred commencement condition of consent 2 requiring a note to be added to the architectural documentation that walls shown solid black are being retained, on the basis that it is not necessary. 4The applicant accepts the deferred commencement conditions of consent 3 to 5, requiring a Geotechnical Report, Structural Engineering certification and amended plans and submits that these conditions need not be deferred commencement conditions, but should be included in the conditions of consent as requirements prior to the release of a construction certificate. The site and its context 5The site is on the south-western side of Davidson Street, on the corner of the laneway at the rear of Wortley Street. The site has an area of 94.85sqm (exhibit A) and contains a modest, two storey Victorian terrace house. The terrace house on the site is one of a pair with 19 Davidson Street. 17 Davidson Street is a larger, two storey Victorian terrace house. 6To the rear of the site is 2-4 James Street, with a free standing house fronting James Street and a rear garden and pool area to the rear of the site. 23 and 25 Wortley Street front Wortley Street and have rear courtyards backing onto the laneway adjacent to the site. Background and the proposal 7Development Application No. D/2013/534 was submitted to Council on 2 December 2013 and refused by Council on 26 February 2014. 8The proposal is to retain the street elevation, including the ridge, the front roof plane and chimney, the party wall shared with 19 Davidson Street (excluding the chimney breasts) and the two storey masonry wall of the southern elevation. The interior of the terrace house, including the structure of the floors, is to be demolished and the remaining masonry shell is to be braced. The proposal is to excavate the site and construct a new ground floor 710mm below the existing ground floor level and to extend the front door opening down to the new ground floor level, by demolishing the front verandah and stair adjacent to the front door. A courtyard is to be provided below natural ground level at the rear of the extension. A new first floor level is to be constructed 1270mm below the existing first floor level and a new second floor level is able to be inserted below the existing ridge line as a result of dropping the floor levels of the ground and first floor. 9A roof described by the applicant as an 'arched roof' is to extend from just below the ridge line at the rear roof plane to the rear. The two storey extension of the southern wall, fronting the laneway, is constructed in glass bricks and the rear elevation is a curtain wall system clad in glazed and marble panels. There is a clerestory window inserted into the existing southern masonry elevation fronting the laneway, to provide ventilation and light to the bathroom on the first floor. 10The proposal consists of the following accommodation: * Ground floor: lounge, kitchen and dining, laundry and bathroom * First floor: two bedrooms and a bathroom * Second floor: attic storage and wardrobe area 11The applicant agreed during the hearing to terminate the 'arched roof' in line with the end of the masonry wall of the southern elevation and to provide a flat roof over the rear portion of the extension, in line with the glass bricks in the southern elevation. Planning Framework 12The site is located with the Residential zone and the proposal is permissible with consent, pursuant to the Leichhardt Local Environment Plan 2000 (LEP 2000). The relevant general objectives of LEP 2000, at cl 13, are as follows: (2) The general objective for the built and natural environment and amenity is to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area to: (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, and (e) provide an environment which is visually stimulating, while being easy to manage and maintain 13The general provisions of LEP 2000 for conservation areas, at cl 16(8) are as follows: 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. 14A maximum floor space ratio (FSR) of 0.7:1 applies under cl 19(2) of LEP 2000. There are no objectives for the FSR development standard in LEP 2000. 15Leichhardt Local Environment Plan 2013 (LEP 2013) commenced on 3 February 2014. Clause 1.8A of LEP 2013 is a savings provision requiring development applications, made before the commencement of the plan and not finally determined, to be determined as if the plan had not commenced. Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires that any proposed instrument that is or has been the subject of public consultation be a mandatory, relevant consideration in evaluating the proposal (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 par 29). 16The site is within the R1 General Residential zone, pursuant to LEP 2013 and the proposal is permissible with consent. The objectives of the R1 zone are: - To provide for the housing needs of the community. - To provide for a variety of housing types and densities. - To enable other land uses that provide facilities or services to meet the day to day needs of residents. - To improve opportunities to work from home. - To provide housing that is complementary to, and compatible with, the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. 17The site is within the Balmain Conservation Area (Balmain CA) (Heritage Map Sheet HER_007 LEP 2013). 18The floor space ratio (FSR) development standard for the site is 0.7:1 (Maximum FSR Map Sheet FSR_007 LEP 2013). The objectives for the maximum FSR development standard, at cl 4.4(1) of LEP 2013, are: (a) to ensure that residential accommodation: (i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and (ii) provides a suitable balance between landscaped areas and the built form, and (iii) minimises the impact of the bulk and scale of buildings, (b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale. 19The proposal is subject to the provision of the Leichhardt Development Control Plan 2000 (DCP 2000). The site is located within 'The Valley (Balmain)' neighbourhood (the neighbourhood). The description of the neighbourhood includes the following (exhibit 4, A247 DCP 2000): There is a great diversity in the architecture and detail in the neighbourhood. A certain unity of built form is achieved by incorporating consistent scale, setbacks, materials and roof forms. Where housing stock has been replaced or houses have been upgraded, the essential scale, siting, materials and form have largely been maintained. 20The desired future character of the neighbourhood includes the following (exhibit 4, A249-251 DCP 2000): Maintain the scale and general built form as established on each street. The bulk of the older buildings are contributory both to the local character and the collective heritage of the Balmain Conservation Area. Preserve the rhythm of the neighbourhoods by maintaining the lot sizes, housing style and prevalent e of hipped and pitched roofs. Preserve the established setbacks for each street. Where sloping land and road construction have resulted in houses being built lower than the road level, any new development must account for overshadowing and privacy issues. Preserve the consistency of modest and simple styles and materials of the neighbourhood. High walls and garages are considered intrusive to the character of the neighbourhood. Ensure that future development on lanes does not unreasonably impact upon the amenity of adjacent properties and scenic character. New development should not mimic older architecture but should respect the scale and form of the traditional streetscape in the vicinity. The use of traditional timber, stone or masonry finishes as well as corrugated iron roofing and timber windows are preferred. Maintain roof forms with pitched, gable or hipped roofs. Roof forms are to be designed to preserve view lines for adjoining properties. 21The Building Location Zone (BLZ) guidelines include the following (exhibit 4, B7 DCP 2000): New development or an extension to an existing dwelling is to be located within the BLZ. This is a zone defined by the average front and rear setbacks of both the adjacent buildings on either side of the subject site. The BLZ is that part of the subject site where it can be reasonably expected that a building will be located. This includes 2 storey development and first floor extensions to existing dwellings, however in most circumstances development the first floor may not occupy the entire area of the BLZ, due to the resulting bulk and scale issues. 22Part B Residential Development of DCP 2000 provides guidelines and controls for design elements. Elevation and materials includes the following relevant controls (exhibit 4, B17 DCP 2000): Development should take reference from and complement the existing character of the streetscape in terms of scale, architectural style and materials. alternatives may be considered at the discretion of Council. Preferred roof forms are hipped and gabled with a pitch between 30 and 45 degrees. Other roof forms may be appropriate and these will be considered at the discretion of Council. 23Side setbacks are determined by a 45 degree angle from 2.4m above the side boundary. Council may allow building to side boundaries where the pattern of development is not compromised, higher portions of the building are setback and the proposal minimises amenity impacts on neighbouring properties (exhibit 4, B11 of DCP 2000). 24B4.1 Alterations and additions to existing dwelling houses includes guidelines for the addition of roof forms and rear extensions (exhibit 4, B59-60 DCP 2000): Roof forms are a key element in the character of Leichhardt's buildings. Design roof alterations and additions to respect the scale, form and pitch of the existing roof. Extensions should be subordinate to the existing roof. Changes to roof should be minimal. The height and site coverage of an extension is determined by - ensuring consistency in the wall height and roof form of existing and adjacent buildings - respecting the site layout characteristic in the area - ensuring adequate solar access and private open space to the dwelling - minimising impact on residential amenity of nearby properties - minimising visibility of the extension from the street Public submissions 25The hearing commenced with a view of the site and surrounding properties and the evidence of five resident objectors. Their concerns can be summarised as: * the proposal may potentially jeopardise the structural integrity of the party wall shared by 19 Davidson Street and the site and the chimney breasts on either side of the party wall share masonry blockwork; * the proposal may affect the flow of stormwater and ground water in the vicinity of the site; * the proposal will overshadow the courtyard and northern elevations of 23 and 25 Wortley Street; * the bulk of the proposal will intrude on the outlook from the rear of 23 and 25 Wortley Street; * the glass bricks within the southern elevation of the proposal, adjacent to the laneway, will compromise the amenity of 23 Wortley Street at night when the lights are on inside the proposal; * the proposal is an overdevelopment of the site and is not in keeping with the character of the Balmain Conservation Area. Expert evidence 26Expert planning evidence was provided by Mr Peter Lonergan for the applicant and Ms Deborah Laidlaw for the Council. Contravention of the FSR development standard 27The experts agreed that the proposal's FSR is 1.08:1 and it exceeds the maximum FSR development standard for the site of 0.7. The applicant tendered a State Environmental Planning Policy No 1 - Development Standards objection to the FSR development standard (SEPP 1 objection) justifying the exceedance of the maximum FSR development control on the basis that the underlying objective of the standard is achieved, notwithstanding the non-compliance with the numerical standard. As the FSR development standard in LEP 2000 does not include objectives, the SEPP 1 objection adopts the FSR development standard objectives of LEP 2013. 28The planning experts agreed that the objective of the FSR development standard in LEP 2000 is to control the bulk and scale of a development. 29Ms Laidlaw agreed in oral evidence that the applicant's proposed amendment to the proposal, to terminate the 'arched roof' in line with the existing two storey masonry wall of the southern elevation and have a flat roof over the rear extension, addressed her concern regarding the bulk and scale of the proposal and as a consequence, the SEPP 1 objection to the FSR development standard is acceptable. The design of the proposal 30According to Mr Lonergan, his approach to the design of the proposal was to confine the additions to the existing footprint of the dwelling and he deliberately chose materials that respond to the contemporary nature of the design and provide better internal daylighting. Mr Lonergan said in oral evidence that the proposal does not 'embarrass' the Balmain CA, as there are many examples of exuberant and substantial renovations within Balmain. He disagrees that the terrace house is 'modest', on the basis that it cost a lot to purchase and it is unfair to expect someone to live in a 'pauper's house' and be surrounded by exuberant renovations. 31According to Ms Laidlaw, the proposal ignores the existing fabric of the Victorian terrace house and is an inappropriate response to renovating a contributory building to the Balmain CA. In her view, the materials, the form of the proposal at the rear, the dropping of the floor levels and their relationship to the openings in the street front elevation, the odd proportion of the front door as a result of extending the door opening downwards and the split level front verandah are examples of the inappropriate response of the proposal to the existing fabric of the Victorian terrace house. She described the proposal as 'facadism', as it is, in her view, an inauthentic response to only keep the shell of the dwelling. Findings 32I accept the agreement of the experts that the SEPP 1 objection is well founded and following the amendments to the rear roof extension, the objective of the FSR development standard is achieved. 33The proposal seeks to insert three levels behind the modest street facade of the Victorian terrace house. In order to achieve this, all the internal fabric of the dwelling is to be removed and the new ground floor is 710mm below the existing ground floor level, the courtyard is below natural ground level at the rear of the extension and the new first floor level is 1270mm below the existing first floor level. By dropping the floor levels, there is enough space to insert a new second floor attic level below the existing ridge line, with a maximum ceiling height under the curve of the 'arched roof' of 2200mm. 34The proposal completely ignores the constraints of the existing fabric and fails to achieve a cohesive relationship between the existing and new fabric, as the proposed floor levels bear no relationship to the retained street elevation of the dwelling and its openings, including the front door, the ground floor window, the front verandah and the first floor French doors and verandah. 35The front door opening is extended downwards 710mm to the proposed ground floor level which would result in an oddly proportioned door and a section of the front verandah is to be removed in front of the entry to provide access directly from the footpath to the lowered door threshold. The remainder of the front verandah is at its existing height and inaccessible. These changes to the street front elevation would erode the relationship between the pair of Victorian terraces at 19 and 21 Davidson Street and compromise the contribution of the existing dwelling to the historic streetscape and neighbourhood. 36The internal window sill of the front window is approximately 1500mm above the ground floor level and the ceiling is at the same height as the bottom of the top sash of the window. The floor structure of the first floor steps up and around the window head, so that the top half of the window is within a 300mm wide recess within the ceiling. The ceiling of the ground floor abuts the top of the front door and obscures the highlight window over the front door. Presumably a portion of the top of the front door will have to be fixed closed, as it has the first floor structure and steps behind it, although this is not shown on the East Elevation (exhibit A, dwg 05). The first floor level is approximately 1100mm below the threshold of the French doors opening onto the first floor front verandah. The stepping of the first floor structure provides narrow steps and a tiny landing to the French doors in bedroom 2. 37The proposed 'arched roof' springs from just below the ridge of the rear roof plane. The roof addition is dominant and it does not respect the scale, form and pitch of the existing roof, as it is not subordinate to the existing roof, nor does it maintain the scale and built form of the dwelling. It creates a three storey rear extension which is not complementary to and compatible with the character, style and pattern of surrounding buildings and streetscapes. The vast expanse of glass bricks fronting the laneway does not respond to the historic context. 38While the design may be an appropriate response to maximising the floor area and internal amenity of an infill building on a tiny site, it is an inappropriate and insensitive response to alterations and additions to an existing, modest, Victorian terrace house within the Balmain CA. 39A contemporary design approach is appropriate for alterations and additions to existing dwellings within the Balmain CA, however the new work should respond to the historic context and achieve a cohesive relationship between existing and new fabric. The valuable 19th century character of Balmain is only preserved by retaining the many building types that represent the significant Victorian phase of its development. The fabric and layout of the original principal building form of the Victorian terrace and its setting, including the street front elevation and roof form, contribute to the historic and aesthetic values of the Balmain CA and its collective significance and should be retained. Conclusion 40The proposal to demolish the majority of the fabric of the existing dwelling and to manipulate the levels to the extent proposed, so that they bear no relationship to the original fabric that is to be retained, would diminish both the historic and aesthetic values of the Balmain CA and its collective significance and the impact is of such consequence that the application should be refused. 41Given the above findings, it is not necessary to deal with Council's contention regarding amenity impacts on neighbouring properties, nor the applicant's disputed conditions of consent. Orders 42The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. D/2013/534 for alterations and additions to an existing dwelling is refused. 3.The exhibits, other than exhibits 1 and A, are returned. ____________ Susan O'Neill 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: 15 May 2014