Land and Environment Court New South Wales Medium Neutral Citation: McDonald v Marrickville Council [2016] NSWLEC 1194 Hearing dates: 21 April 2016 Date of orders: 05 May 2016 Decision date: 05 May 2016 Jurisdiction: Class 1 Before: Morris C Decision: See paragraph 28 Catchwords: Consent Orders: skylight and roof access Legislation Cited: Environmental Planning and Assessment Act 1979; Marrickville Local Environmental Plan 2011 Texts Cited: Marrickville Development Control Plan 2011; the Building Code of Australia Category: Principal judgment Parties: Thomas McDonald (Applicant) Marrickville Council (Respondent) Representation: Solicitors: Mr C Norton Piper Alderman (Applicant) Ms J Blunden Marrickville Council (Respondent) File Number(s): 2016/155217 (formally 11172 of 2015) Judgment 1. This is an appeal against the actual refusal by Marrickville Council of a request to review Development Application 201400681. That consent granted approval to demolish part of the premises and carry out ground and first floor alterations and additions to a dwelling house and construct a basement laundry and powder room. The originally lodged development application had also included a proposal to enlarge a roof skylight and to provide a timber landing platform with access to the roof. The Council had refused that component of the development. The applicant is appealing the determination of an application that sought review of the refused component of the application. 2. Since the appeal was filed the applicant and Council have been in discussions to address the reasons for refusal and the applicant has provided amended plans and a structural engineer's report. Those discussions and the provision of the additional information have resolved the issues between the parties and they are seeking consent orders from the Court. The site and its context 1. The site, known as 178 Albany Road Petersham, is located on the north western corner of Albany Road and Charles Street with a frontage of 4.11m to Albany Road and a secondary frontage of 36.57m to Charles Street resulting in a site area of 149.8 m². A part one and part two storey dwelling house currently occupied the site. Westbourne Lane provides rear access to the site from its northern boundary. 2. The area surrounding the site is predominantly one and two storey residential development. Immediately to the west of the site is a part one and part two storey dwelling house, opposite Charles Street to the east of the site is a dwelling of similar form and to the north on the opposite side of Westbourne Lane is a part one and part two storey mixed use building. Single storey dwelling houses are located opposite the site on the southern side of Albany Road. Background and the proposal 1. The original development application proposed demolition of part of the premises, ground and first floor alterations and additions to the existing dwelling house, construction of a basement laundry and powder room and enlargement of a roof skylight to provide a timber landing platform with access to the roof. Consent was granted on 16 June 2014 however the proposal to enlarge the skylight and provide a timber landing platform was refused. On 22 September 2015, the applicant requested that Council review the determination under section 82A of the Environmental Planning and Assessment Act 1979 (EP&AAct) to provide for the skylight and landing platform. On 14 December 2015 Council resolved to confirm its previous determination of the application. 2. The reasons for refusal were that: * the enlarged roof skylight with timber landing platform providing pedestrian access to the roof detract from the general appearance of the dwelling house and has a negative impact on the heritage conservation area thereby varying from the objectives and controls contained in Part 4.1.5 and Part 8 of Marrickville Development Control Plan 2011; * the enlarged roof skylight with timber landing platform providing pedestrian access to the roof is likely to result in a significant and unacceptable overlooking of adjoining properties and thereby varies from the objectives and controls contained in Part 2.6 of Marrickville Development Control Plan 2011; * the plans and details submitted with the development application contained inaccuracies and accordingly the proposed access to the roof for maintenance cannot be supported; * given the substantiated issues raised in the resident submissions, approval of the application would not be in the public interest. 1. The applicant has prepared amended plans that attempt to address the reasons for refusal. Those plans, Exhibit A, propose to replace an existing skylight with a larger structure with a roof height slightly above the existing parapet wall of the higher, front or southern portion of the dwelling house. Stairs would be constructed to provide access to that area from the first floor of the dwelling and a timber landing that would be provided behind the extended parapet. A door would provide access from the skylight area to the timber landing which is at the lower roof level of the proposed addition. A gate would provide access from that landing to the lower roof area with the roof to be enclosed by a new BCA compliant glass balustrade fixed to the inside face of the existing parapet wall. 2. No similar balustrading was proposed around the upper roof level despite it being accessible from the landing, albeit with a level change of around 1m. 3. A structural engineer's report has been provided to the Council demonstrating the adequacy of the existing roof structure to support its use as a trafficable roof however the application does not propose use of the roof as a roof top terrace, the purposes is for maintenance only. Despite this fact the Council had requested the balustrade. 4. The Council had notified the amended plans in February 2016 and received no objections to the proposal despite having received submissions in relation to the earlier exhibition of the development application. The planning controls 1. The site is zoned R2 Low Density Residential under Marrickville Local Environmental Plan 2011 (LEP). The development is permissible with consent in that zone. Part 4 of the LEP contains development standards for building height and floor space ratio (FSR) with a maximum building height of 9.5m and maximum FSR of 0.97:1 applying to the site. The development satisfies these development standards. 2. The site Is located within a Heritage Conservation Area (HCA), the Annandale Farm HCA C6. The property is not listed as a heritage item and is not located within the vicinity of such item. Clause 5.10 of the LEP applies to consideration of the application. 3. Marrickville Development Control Plan 2011 (DCP) applies to the site with Parts 2 (Generic Provisions), 4 (Residential Development) and 8 (Heritage) particularly relevant to the application. The issues 1. It is the Council's contention that the engineer's report and the amended plans satisfy the original reasons the skylight and rooftop access was refused and accordingly there are no contentions in the case. The evidence 1. The hearing was held in Court with no site view taken prior. 2. Expert planning evidence was heard from Ms R Mitchell for the applicant and Mr A Richardson for the Council. They had prepared a joint report, Exhibit C that addressed the Council's reasons for refusal of the roof access. They identify the following additional information and amendments made to the plans: * a 1.01 m high glass balustrade fixed to the inside face of the existing parapet walls on the roof level; * a corrected survey plan; * a structural engineer's certificate to certify the structural adequacy of the roof; * a landscape plan to demonstrate compliance with conditions 18 of the consent. 1. The experts agree that the dispute surrounding the roof access was in relation to how the roof area was to be used. Council was concerned that the roof area has the potential to be used as a roof terrace for private open space. In order to resolve any ambiguity in relation to the use of the roof, Council wanted to the roof terrace to be formally included on the application so that merits of the use of the roof could be formally assessed. 2. During the hearing, Mr Norton for the applicant confirmed that the purpose of the skylight was to improve lighting to the upper level of the dwelling and provide access to maintain the roof. The application does not seek use of the roof as an area of private open space. 3. The experts agree that any views of the roof access will be minor and as a result will have negligible impact on the HCA. In particular, the enclosed roof skylight and glass balustrade for not be visible from Albany Road and directly in front of the property. The roof access and glass balustrade will be visible from the secondary frontage along Charles Street and to the rear from Westbourne Lane, however existing street trees in the HCA and trees located on nearby properties will obscure views of the proposed enlarged roof skylight as viewed from both the public domain and adjoining properties. Other elements of urban infrastructure, such as electricity poles and wires will also reduce any visual impact of the enlarged roof skylight. 4. The primary purpose of the roof access is to provide safe access to existing roof services and roof maintenance, such as maintaining the box gutters. The gate, shown on the roof level drawing is to act as a safety barrier i.e. to allow access to the lower roof for maintenance of the gutters, but act as a barrier, restricting anyone from easily walking out onto the roof. The design is to deter people from gathering on the roof. The roof area is not immediately adjacent to living areas, including the kitchen and will not act as an extension to the living areas and is therefore less likely to be utilised as a primary open space area, reducing the privacy impacts on surrounding properties. 5. The experts agree that the applicant's survey drawings indicates no change or works to reduce the ceiling height of the existing first-floor bedroom to the rear of the property and as a result, no change to the height of the roof above the bedroom. As no objections were received to the amended proposal and Council is satisfied that the intention is to use the roof terrace for maintenance only, the experts say public interest is no longer an issue. 6. Because the use of the roof for private open space had been a concern to the Council, I asked whether the balustrade was actually necessary if the purpose of the access was only for maintenance and whether all roofs within the Marrickville local government area had a balustrade around them. Mr Richardson confirmed the balustrade was not necessary and he agreed that if it was deleted the resultant built form would be more in keeping with the HCA. Ms Mitchell agreed. 7. Mr Richardson said that the balustrade may reinforce the perspective that there is a roof element but that it would not negatively affect the HCA. Ms Mitchell also says the balustrade will not have a negative impact because it is on a side street and also oriented towards the rear lane. Whilst it will be visible from Charles Street, this is a secondary road and opposite a secondary frontage and there are other first-floor terraces in the vicinity of the site however both experts confirmed that the only roof terrace in the vicinity of the site is the one to the north and that site is outside the HCA. Conclusion and findings 1. The application before the Court seeks approval for a skylight that would provide access roof of the existing dwelling for maintenance purposes only. The site is within an HCA and accordingly, pursuant to clause 5.10 of the LEP consent is required for the work. Consideration of the application therefore requires assessment of the works in relation to the HCA and whilst I accept the expert evidence that the work, particularly the balustrade, would not negatively affect that HCA, I also accept the evidence that if the balustrade were to be deleted, the resultant built form would be more in keeping with the HCA. 2. The balustrade is not required to satisfy the provisions of the Building Code of Australia (BCA) nor is it required to ensure that maintenance of the roof can be conducted in a safe manner as other means of ensuring safety of workers can and are embraced throughout Marrickville. Because the balustrade is unnecessary and detracts from the heritage significance of the building as it sits within the HCA I do not consider that it should be approved under the consent. 3. The proposed skylight structure is located towards the centre and western boundary of the site and therefore its visibility is restricted by the proposed extension to the parapet. The primary view of the structure would be contained from outside the HCA, that is the area to the north of Westbourne Lane. Accordingly, I accept the expert evidence that this structure will not have an adverse impact on the heritage significance of the HCA. That element of the proposal could be approved. 4. To ensure that the proposal is reflected on plans that could form part of the consent, it is appropriate that amended plans be prepared that show the deletion of the balustrade and the provision of appropriate security and safety doors/gates from the skylight and timber landing area to ensure that the access remains safe from within the dwelling. Directions 1. As I have found that only part of the works proposed should be approved and amended plans are required, I am not prepared to make Orders sought by consent. I therefore make the following Directions: 1. The applicant is to file and serve amended plans that reflect this decision and as detailed at [27] within 14 days from the date of this Judgment. 2. The Council is to provide conditions that reflect those plans 7 days after the plans are served. 1. On receipt of those plans and conditions, Orders consenting to the skylight and timber landing platform only will be made in Chambers. Addendum made on 25 May 2016 1. In accordance with the terms of the directions in my judgment of 5 May, on 6 May the applicant provided me with amended plans parties and on 17 May 2016 the council provided me with the agreed conditions of consent. I am satisfied that the conditions of consent/amended plans accord with my findings and accordingly I make orders in chambers as follows: 1. The appeal is upheld. 2. Development Application 201400681 for demolition of part of the premises, ground and first floor alterations and additions to a dwelling house, construction of a basement laundry and powder room and enlargement of a roof skylight and a timber landing platform to access the roof for maintenance purposes only is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A and B, are returned. ______________________ Sue Morris Commissioner of the Court 155217.2016 Morris (C) (130 KB, pdf) 155217.16 Morris_Plans1423 - WD working 160505 EF (2.37 MB, 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: 26 May 2016