Land and Environment Court New South Wales Medium Neutral Citation: Stevens v Leichhardt Council [2015] NSWLEC 1332 Hearing dates: 29 July and 5 August, 2015 Date of orders: 12 August 2015 Decision date: 12 August 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. D/2014/663 for a Torrens title subdivision and construction of a pair of semi-detached dwellings at 47 Balmain Street, Leichhardt, is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1, A, B, and C, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; subdivision of existing allotment into two allotments; construction of semi-attached dwellings; whether the proposal is inconsistent with the prevailing subdivision pattern in the locality; whether the design of the proposal is appropriate in the streetscape setting; amenity; stormwater. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mr Stewart Stevens (Applicant) Leichhardt Council (Respondent) Representation: Counsel: Mr P. Clay SC (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitors: - (Applicant) Leichhardt Council (Respondent) File Number(s): 10215 of 2015 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2014/663 for the subdivision of an existing allotment into two allotments and the construction of a pair of semi-detached dwellings (the proposal) at 47 Balmain Road, Leichhardt (the site) by Leichhardt Council (the Council). 2. The appeal was subject to mandatory conciliation on 22 April 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on the same day, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 26 May 2015 for the applicant to rely on the amended proposal. 3. Following the commencement of the hearing on-site on 29 July, 2015, the hearing was adjourned until 5 August, 2015, for the applicant to prepare a further amended proposal in accordance with the agreement of the planning and engineering experts. 4. Leave was unopposed by the Council and granted by the Court for the applicant to rely on the further amended proposal (exhibit A). Following the amendments made to the proposal, the parties agreed to enter into consent orders. In considering the consent orders, the Court's Practice Note – Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. There were no resident objectors present at the hearing. Issues 1. The Council's contentions in the matter regarding the original application can be summarised as: * The proposed subdivision is inappropriate as it creates two extremely narrow allotments, resulting in an unacceptable form of development on the site that is inconsistent with the streetscape of Balmain Road; * The design of the proposal does not sit comfortably within the streetscape of the residential portion of Balmain Road, as it has an uncharacteristic roof form and fails to maintain the character of the area by keeping development complementary in architectural style; * The proposal will result in an unacceptable level of internal amenity; * The proposal will result in unacceptable amenity impacts on adjoining properties as it breaches the side setback controls for the site; and * The proposal blocks the passage of overland flow from with the site as it is built to both side boundaries. 1. The Council's contentions were resolved, to the Council's satisfaction, by the following amendments made to the proposal and the agreed conditions of consent: * The position and design of the dormer windows in the front elevation are amended; * The form of the roof to the rear of the front gable is modified; * The northern dwelling is setback 300mm from the side boundary. The site and its context 1. The site is located on the eastern side of Balmain Road, to the north of Parramatta Road and to the south of Styles Street. The site has a frontage to Balmain Road of 8.585m and an area of 412m2. 2. The site contains a single storey dwelling. 3. There is a diverse mix of development in the local area, including the 'Italian Forum' development on the opposite side of Balmain Street close to Parramatta Road; late 19th century and early 20th century attached and free standing single storey dwellings, some with parking in the front setback and mid-20th century walk up flats. Background and the proposal 1. The proposal is to demolish the existing dwelling and construct a pair of semi-detached dwellings and to subdivide the site to create two allotments of 201sqm and 211sqm. 2. The southern dwelling includes a car parking space within the front setback and the northern dwelling has a landscaped front setback. 3. The dwellings are mirror reversed, including, on the ground floor, an entry hall along the party wall, a third bedroom, bathroom, laundry, stair and open area at the rear containing kitchen, dining and living areas. The ground floor is built to the side boundary on the southern side, excluding a small setback adjacent to the stair midway along the length of the proposal. The proposal includes two bedrooms and a bathroom on the upper level of each dwelling. Planning framework 1. The site is zoned R1 General Residential pursuant to Leichhardt Local Environment Plan 2013 (LEP 2013) and the proposal is permissible with consent. The relevant objectives of the R1 General Residential zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. The objectives and controls of the Leichhardt Development Control Plan 2013 (DCP 2013) are a relevant consideration. An objective for subdivisions, at C1.6 of DCP 2013, is to create lots that are consistent with the surrounding prevailing subdivision patterns. The minimum lot size is 200sqm and new allotments are to be consistent with the prevailing subdivision pattern. 2. The site is within the Piperston Distinctive Neighbourhood, shown in Figure C69 of DCP 2013. The Piperston Distinctive Neighbourhood is characterised by a wide variety of architectural styles and periods and building stock of low scale and density. 3. The relevant objectives for site layout and building design, at C3.2 of DCP 2013, are to ensure that development reinforces the desired future character and a distinct sense of place within the streetscape and neighbourhood and that it complements the siting, scale and form of adjoining development. 4. The relevant objective for private open space, at C3.8 of DCP 2013, is to provide private open space for each dwelling. The relevant controls are that the private open space has a minimum area of 16sqm and a minimum dimension of 3m and that it is connected directly to the principal indoor living area. Expert evidence 1. Mr Stuart Harding (planning) and Mr Sinan Jan (stormwater) provided expert evidence on behalf of the applicant and Ms Kerry Gordon (planning) and Mr James Ogg (stormwater) provided expert evidence on behalf of the Council. 2. Ms Gordon gave the Court an undertaking during evidence that the amended proposal shown in exhibit A satisfactorily addressed all of the Council's contentions. Consideration 1. I accept the agreement of the planning experts that the amendments made to the proposal, coupled with an amendment to the dividing fence between the allotments, have addressed the internal amenity issues and the issue of the impact on the amenity of the property to the south of the site, raised by the Council. 2. I accept the agreement of the planning experts that the amendments to the dormers in the street elevation results in a proposal that sits comfortably within the streetscape of the residential portion of Balmain Road, as it has a characteristic roof form which is complementary to the existing development within the area. 3. I accept the Council's submission that the proposal satisfies the minimum allotment requirement in DCP 2013 of 200sqm, with allotments of 201 and 211sqm, which are consistent with the prevailing subdivision pattern in the area. 4. The design of the stormwater proposal is provided with an overland flow path across the 300mm setback from the northern boundary, as a failsafe alternative to the stormwater proposal, and I accept the Council's submission that this amendment to the proposal addresses the issue raised regarding the stormwater design. Conclusion 1. I accept the agreement and evidence of the experts that the amendments to the proposal and the conditions of consent have satisfactorily addressed the contentions raised by Council regarding the original proposal. I am satisfied that it is appropriate to grant development consent. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. D/2014/663 for a Torrens title subdivision and construction of a pair of semi-detached dwellings at 47 Balmain Street, Leichhardt, is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1, A, B and C, are returned. ­­­­­­____________ Susan O'Neill Commissioner of the Court 10215 of 2015 O'Neill (C) (307 KB, pdf) ********** 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: 12 August 2015