Todd Buncombe and Anor v Leichhardt Council [2016] NSWLEC 1093

Land and Environment Court New South Wales

Medium Neutral Citation: Todd Buncombe and Anor v Leichhardt Council [2016] NSWLEC 1093 Hearing dates: 4 March, 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Class 1 Before: Smithson AC Decision: 1. The appeal is upheld 2. Consent is granted to development application DA D2/2015/472 for alterations and additions to the existing dwelling, including new pool, reconstruction of the existing garage and boatshed at 7 Gallimore Avenue, East Balmain subject to the conditions in Annexure A 3. The exhibits, except Exhibits A, 1 (A3 version only), 2, 3, and 6, are returned Catchwords: DEVELOPMENT APPLICATION: alterations and additions, works to a cottage in a conservation area, heritage, view impacts from waterway, excavation, demolition or alterations, resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Category: Principal judgment Parties: Todd Buncombe and Anor v Leichhardt Council Representation: Counsel: Mr A Galasso SC (Applicant)

Solicitors: Mr Whealy, Mills Oakley Lawyers (Applicant) Mr Bonnano, Leichhardt Council (Respondent) File Number(s): 11158 of 2015 Publication restriction: No

Judgment 1. ACTING COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act against the deemed refusal by Leichhardt Council (the Council) of Development Application D/2015/472 (the application). The application is for substantial alterations and additions to an existing dwelling, including new pool, and reconstruction of the existing garage and boatshed at 7 Gallimore Avenue, East Balmain (the site). 2. In essence the applicant proposes to remove and replace 1990's additions adjoining the southern boundary to the south of an existing cottage and to reinstate elements of the cottage dating variously from the 1840's to the early 1900's. This includes replacement of the balcony and roof, alterations to some exterior openings and treatment to the original stone work. The authenticity of some of the elements proposed to be reinstated was questioned by the Council. 3. The replacement of the 1990's addition takes the form of a new addition, referred to in the proceedings and variously as 'the pavilion' or new wing, generally but relevantly not wholly within the building envelope of the existing 1990's addition and cantilevering over a retaining wall / rock face at the rear of the boatshed. The boatshed is also to be replaced with a new boatshed, a staircase along the northern boundary removed to expose the rock face, certain trees adjoining the waterway retained, additional excavation of the rock face internal to the site undertaken, a new swimming pool and terraced landscaping works installed, and the garage modified. 4. The site is agreed by the parties to be a contributory element in the East Balmain Conservation Area as designated in the Leichhardt Development Control Plan (DCP) but is not a listed heritage item under the Leichhardt Local Environmental Plan (LEP). There was also common agreement that many features of the original cottage are not known and that the cottage has been modified over time. 5. The appeal was subject to mandatory conciliation and arbitration on 3 March 2016 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of and from the adjacent area, including the waterway, and neighbouring properties. The Court heard from a number of resident objectors and a supporter. 6. One neighbour from 9 Gallimore Avenue sought and received clarification onsite that there would be no impact on her property or retaining wall from the proposed development and raised no other concerns. A second resident who lived opposite the site at 2 School Street supported the removal of the existing garage and had no objection to the proposed skylights which would be visible from his property. Two owner / occupiers and the secretary of the owners corporation from the adjoining residential flat building at 5 Gallimore Avenue raised objections in terms of: the overshadowing of the drying area and a number of windows of apartments within their complex from the pavilion extension; visual and view impacts; privacy impacts to lower apartment windows; and the inappropriateness of a modern development in a Conservation Area, given their own development was having issues with modifications as a result of being in the same Conservation Area. 7. As no agreement was reached during the conciliation phase, despite genuine attempts by both parties, the conciliation conference was terminated pursuant to s s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(ii). 8. Leave was granted to rely on amended plans arising from the conciliation phase. In essence, the modifications proposed to: reduce the size of the boatshed to a similar building envelope to that of the existing boatshed; reduce the height and width (ie size) of the pavilion extension; delete one of two skylights; raise the height of the garage floor level; retain existing 'nib' stone walls in the cottage; and reinstate the presumed original door opening of the cottage. 9. The applicant also provided additional advice with regard to foreshore risk management (in terms of potential flooding), car parking levels and the basis for the amount of excavation sought to the rock face situated between elements of the existing structures. 10. At the outset of the hearing, the Council advised the Court that the modifications proposed by the applicant in the amended plans or agreed to by the applicant in conditions of consent, addressed a number of the Council's concerns. Specifically, the Council no longer pressed concerns in terms of the accuracy of the plans, flooding, the boatshed, or garage levels. The Council also agreed that the impact on the occupants of 5 Gallimore Avenue had been reduced, although not totally alleviated. 11. Relevantly however, the modifications proposed in the amended plans also sought to extend the southern element of the pavilion to further cantilever over the rock face in its southern most point. The Council's expert planner raised concerns with this aspect of the development, as will be discussed later. 12. The Council's primary concern was that the 'pavilion' element of the development remained, unnecessarily, too large which had various adverse impacts, primarily as a result of the site's location in a significant Conservation Area and its visibility from the waterway. In particular, the Council contended, the extension, even as modified, would result in a diminishment of the heritage elements of the cottage that the application sought to promote. 13. The applicant in response in submissions raised concerns that the cottage was being dealt with by the Council's heritage expert as if it were a listed heritage item which it wasn't, and noted that the proposed development was entirely compliant with Council's numeric controls. 14. In essence, the applicant argued that the 'pavilion' wing was not a new element attached to a heritage building, was largely replacing an existing unsympathetic 1990's addition, and was part of an overall development involving the reinstatement of historic elements of a contributory building in a Conservation Area. The applicant argued that the site was a large but constrained waterfront property with the lower portion undevelopable (under Council controls) and the new pavilion was an appropriate sophisticated response to provide modern accommodation for the owners whilst revealing more of the cottage that is evident today and having regard to the site's constraints.