Land and Environment Court New South Wales Medium Neutral Citation: Blanke & Anor v Marrickville Council [2014] NSWLEC 1135 Hearing dates: 26 June 2014 Decision date: 02 July 2014 Jurisdiction: Class 1 Before: Morris C Decision: See [27] - [28] Catchwords: Modification: form dormer window should take Legislation Cited: Environmental Planning and Assessment Act 1979; Marrickville Local Environmental Plan 2011; Land and Environment Court Act 1979 Texts Cited: Marrickville Development Control Plan 2012 Category: Principal judgment Parties: Jacqui Blanke Manuela Koehler (Applicants) Marrickville Council (Respondent) Representation: Mr D Briggs, DG Briggs and Associates (Applicant) Mr J Strati Marrickville Council (Respondent) File Number(s): 10282 of 2014 Judgment 1Marrickville Council granted consent to Development Application DA201200284.02 on 13 March 2013 (the consent) authorising the installation of a dormer window on the front roof plane of a dwelling house to service the attic room at 62 Garners Avenue, Marrickville. The owners of the property subsequently lodged an application to modify that consent and proposed a larger and different style of window. The council refused that application and the applicants are appealing that decision. The site and its context 2The site is located on the north western side of Garners Avenue between Sydenham and Marrickville Roads, has a frontage of 4.19m, depth of 28.885m and area of approximately 125sqm. 3The existing improvements on site include a 2 storey plus attic dwelling house, which is one of a set of three attached dwellings, built in accordance with a consent issued by the council in 2008. Each dwelling is located on separate Torrens Title allotments, the site being legally described as Lot 3 in DP 1151033. 4Development in the vicinity of the site comprises a mix of single and two storey dwelling houses including terrace housing and detached housing. A commercial precinct is located to the south and an associated carpark is located adjacent to the southern end dwelling of the set. Background and the proposal 5The dwelling on the site was constructed as one of three attached two storey contemporary terrace style townhouses built in accordance with the provisions of Development consent DA200800119. All dwelling comprise ground floor living areas and upper floor bedrooms with a verandah across the frontage of the first floor. The entire front elevation of each level comprises glazed windows and doors. The subject dwelling is the only one of the three in the group that contains a garage. The roof is a common gable and the scale and proportions of the building reflect those of the adjoining Victorian period houses. 6The applicants lodged DA201200284 on 14 September 2012 seeking consent to install a dormer window on the front roof plane of the dwelling house to service the attic room and provide fixed stair access to the space. Consent was refused. 7An application for review of the application was lodged pursuant to Section 82A of the Environmental Planning and Assessment Act 1979 (EPA Act) and the plans were amended to change the style and size of the dormer. The width was reduced by approximately 50% and the style changed from a Federation to Victorian style dormer window (as described in the council's development control plan). Consent was granted to the amended proposal on 13 March 2013. 8The applicants subsequently lodged an application to modify that consent. The plans lodged with that application increased the width of the window and reverted the style to a Federation style dormer. The council refused to modify the consent and the applicant is appealing that decision. The plans before the Court are those refused and propose the construction of a Federation style dormer with an external width of approximately 2m, depending on the type of wall cladding used. The internal dimension is 1800mm and wall width 90mm. Glazing would comprise two operable and one fixed panel. The planning controls 9The property is zoned R2 Low Density Residential under Marrickville Local Environmental Plan 2011 (LEP). The proposed development is permissible with consent. Those clauses relevant to the application are 4.3 - Height of Buildings; 4.4 - Floor area/floor space ratio (FSR); 4.6 - Exceptions to Development Standards. 10In granting consent, the council considered and upheld a written objection to the development standard for floor space ratio, as the additional floor space within the roof area resulted in a FSR of1.1: 1 which exceeds the 0.85:1 permitted for the site. The modification application before the Court would further increase the extent of non-compliance by a minor extent however the council has not raised this as a contention in the case. 11The site is not a Heritage Item or within a Heritage Conservation area. 12Marrickville Development Control Plan 2012 (DCP) applies to the site and contains, at Part 4.1, provisions for Low Density Residential Development. Clause 4.1.8 applies to Dormer Windows and recognises that the size and style of traditional dormers in the Marrickville LGA is varied. It states: The appropriate size and style of a dormer is determined by the style and size of the dwelling, and often the detail of original dormers in the vicinity. Dormers can be found on Colonial, Victorian and Federation era dwelling houses. However each stylistic era requires dormers appropriate to its style. Dormers are generally not appropriate on Inter War period houses. Victorian and Federation style dormers are the most prevalent in the LGA, and they are generally plain with little embellishment. 13Specific controls are contained from C32 to C47 and include proportions and details of a typical Victorian dormer and dimensions of a Federation dormer. In addition, relevant controls are: C32 Dormer windows may be permitted on the front or side roof plane of any building, or row of buildings, where demonstrated to suit the style and age of the building/s they are associated with, and where compliant with C56-C61. C34 New dormers added to existing buildings shall adopt the style of traditional models on similar styled buildings in the neighbourhood. C35 Appropriate number of dormers: i. only one dormer will be permitted in a Victorian single storey, single fronted dwelling, or a single fronted, two storey dwelling, with one level 1 window or door. (Figure 5) C39 Dormer windows proposed for existing buildings other than those described at C42 and C43 will be evaluated on an individual basis. C40 The use of dormers in new buildings and major new additions shall be determined on merit. Most importantly the proportions of contemporary dormers shall be mindful of traditional models, and have solid cheeks, and no eaves. (Figure 10) C41 Dormers should not dominate the roof plane, or appear as a second storey. C42 Design cues should be taken from the existing building such as window size, proportions, roof pitch, barge and/or pediment detail. C43 Do not use dormer windows where they are not suited to the architectural style of the building. C44 Dormers must be arranged symmetrically on the roof plane. C45 Dormers must not incorporate doors or balconies. C47 Dormers in rows of identical terraces, or buildings which form part of a pair or group, shall be identical. (Figure 11) 14Clause 4.1.9 contains additional controls for contemporary dwellings and Control 51 is relevant and states: C51 New dormers on contemporary buildings must be consistent with the existing roof forms in the street. The issues 15The contentions in the case are whether the modified development proposal would comply with the requirements for dormer windows in the DCP or would have an unacceptable appearance within and upon the streetscape in Garners Avenue. The evidence 16The matter commenced on site as a conciliation conference however no agreement was reached between the parties. It was agreed that the matter proceed and be disposed of on the basis of what had occurred at the conciliation conference and a short hearing held on site pursuant to s34(4)(b)(i) and (ii) of the Land and Environment Court Act 1979. 17Position papers had been prepared by Ms K Napier for the council (heritage and urban design) and Mr B Lay (architecture and planning). These experts had assisted the Court during the conciliation phase of the hearing and Ms Napier had put forward an alternate option for consideration. That option was that the form of the window remain as proposed by the applicant but its width be reduced to a maximum external width of 1500mm. That option was not acceptable to the applicants. 18At the conclusion of the conciliation conference, the difference between the parties was how wide the window should be. Ms Napier did not object to the style or form of the window but rather its proportions. She says that the proposed dormer is not consistent with the contemporary two storey Victorian style terrace row, that the DCP requires the proportions to be mindful of traditional models and that proportion is an important aesthetic decision utilised by a designer to achieve a balanced and sculpturally pleasing building. The proportion of the dormer is most important in reading a building's picturesque qualities and the dormer must not appear as an additional storey, which she says this does. The ideal proportion is one-third the width of the building and the application is for half the width. If approved, Ms Napier says the application would undermine the intent of the DCP and would set an undesirable precedent for the design of dormer windows in Garners Avenue, the surrounding area, and the LGA. 19Mr Lay says the dwelling is a modern terrace house of a different character to the other period construction the vicinity, has a modern presentation to the streetscape and is noticeably different in terms of architectural form, fenestration, proportions, materials and detail. He says the dwelling and its group, is compatible and complementary to the character but also a statement of their time and represents good contemporary design. He says the row and context are a generous two storey scale with strong unifying roof and the proposal retains that scale, the dormer being subservient and contained within the roof form. The visibility within the streetscape is diminished by being viewed from below both frontally and obliquely, being both foreshortened in these views by the setback and by perspective. 20The proposed dormer complements the form of the building below with a diminution in scale and fits the typology of terrace houses. Being lower and more horizontal in size and proportions, the proposed dormer also assists in both reducing the height and bulk and with compatibility with the fenestration below. While reduced in scale and bulk the dormer pattern responds to the proportions and rhythm of the façade below in terms of the glazing pattern, symmetry and the balance of vertical and horizontal elements. The proportion of both the dormer and its three windows reflects the golden mean, as does the façade below. It responds to a contemporary building finished about in a contemporary manner. 21Mr Lay does not consider the dormer will dominate or be read as an additional storey. The proposed skillion or eyelid style dormer maintains a lower and less obtrusive scale and character, which serves to maintain the perceived scale and character of contemporary buildings better than a Victorian model. Conclusion and findings 22Having regard to the evidence, I consider the form of the proposed dormer is appropriate to the contemporary character of the dwelling in its group of three. The proportion of the window is however excessive in terms of the width of the dwelling and in this regard I agree with Ms Napier that the maximum external width should be reduced. The context of the site is an important consideration and its location at the end of a row of three contemporary dwellings makes any window appear as an intervention into the roof form and asymmetrical. 23The DCP must form the focal point of my consideration and in this regard, I consider that so as not to dominate the roof plane, its proportion should be reduced to nearer Ms Napier's recommended range. The design cue should be taken from the existing building. I note that the fenestration as erected differs from that shown on the plans approved under the consent and in particular the upper storey highlight window does not incorporate the vertical mullion in its centre. Those vertical elements are strong cues to the form the dormer window should take and inform the proportion of the window. 24For these reasons, I consider that the maximum external width of the dormer should be 1500mm including any external cladding. Only two window panes should be used and a central vertical mullion that lines up directly to the central mullions of the first floor doorway should separate these panes. The height and other detailing should be in accordance with that shown on the plans lodged with the Class 1 application. 25In the event that the plans are amended to reflect these changes, there is no reason why the consent should not be modified. 26To allow making of final Orders the applicant is to lodge amended plans and the council is to finalise the conditions of consent as modified that reflect those plans. Directions 27The applicant is to file and serve plans that reflect the details in [24] by 4pm Friday 11 July 2014. 28The council is to file agreed conditions and a consolidated set of conditions in Word format that reflect those plans by 4pm 18 July 2014. 29Final Orders will be made in Chambers. ___________________ 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: 02 July 2014