Lane v Inner West Council [2017] NSWLEC 1257

Land and Environment Court New South Wales

Medium Neutral Citation: Lane v Inner West Council [2017] NSWLEC 1257 Hearing dates: 25 May 2017 Date of orders: 30 May 2017 Decision date: 30 May 2017 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. D/2016/561 for alterations and additions to an existing cottage, including a first floor addition, at 6 Ann Street, Balmain, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing cottage which is contributory to the Balmain Conservation Area; site coverage; impact on the heritage significance of the conservation area; amenity impact on adjoining neighbour. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Temara Lane (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr V. Conomos solicitor (Applicant) Mr M. Bonanno solicitor (Respondent)

Solicitors: Conomos Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2017/22379

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/2016/561 for alterations and additions to an existing cottage, including a first floor addition (the proposal) at 6 Ann Street, Balmain (the site) by Inner West Council (the Council). 2. The appeal was subject to mandatory conciliation on 25 May 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated and a hearing held forthwith pursuant to s 34AA(2)(b)(i) of the LEC Acct . 3. Leave was granted by the Court at the commencement of the hearing for the applicant to rely on an amended proposal, revision L (exhibit A). 4. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Issues 1. The Council's contentions can be summarised as: * The proposal is an over development of the small site as the site coverage exceeds 60% of the site, breaching the development standard and the applicant's request for a variation of the development standard is not well founded. * The proposal has an unacceptable impact on the heritage significance of the Balmain Conservation Area (Balmain CA). * The proposal has an unacceptable impact on the amenity of the adjoining dwelling at 4 Ann Street. 1. A number of contentions were addressed, to Council's satisfaction, by amendments made to the proposal as a result of the joint conferencing of the experts and incorporated in the plans identified as revision L (exhibit A). The parties agreed that the proposal complies with the floor space ratio development standard for the site of 0.7:1 and the landscaped area requirement of at least 15% of the site area and that the parking space layout and dimensions are acceptable. The site and its context 1. The site is on the northern corner of Ann Street and Gladstone Street, Balmain. The site has an area of 123.3sqm. The site contains an existing single storey cottage with the front portion constructed in sandstone masonry, later additions to the rear of the front two rooms and a concrete tiled hipped roof over. The proposal 1. The proposal is to retain the front two rooms of the original cottage and part of the hipped roof form of the roof, including the form of the roof facing both Ann Street and Gladstone Street and to demolish the later additions to the rear of the cottage. The proposal includes a new on-site car space accessed from Gladstone Street and a new bedroom and two new bathrooms on the ground floor and a kitchen dining and living area on the upper floor with a terrace on the south-eastern corner of the site. 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 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 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 site is located within the Balmain Heritage Conservation Area (Balmain HCA) and the proposal is therefore subject to the provisions of cl 5.10 of LEP 2013. Sub-clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the Balmain HCA. 2. Clause 4.3A of LEP 2013 Landscaped areas for residential accommodation in Zone R1 is in the following terms: (1) The objectives of this clause are as follows: (a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents, (b) to maintain and encourage a landscaped corridor between adjoining properties, (c) to ensure that development promotes the desired future character of the neighbourhood, (d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water, (e) to control site density, (f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space. (2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential. (3) Development consent must not be granted to development to which this clause applies unless: (a) the development includes landscaped area that comprises at least: (i) where the lot size is equal to or less than 235 square metres—15% of the site area, or (ii) where the lot size is greater than 235 square metres—20% of the site area, and (b) the site coverage does not exceed 60% of the site area. (4) For the purposes of subclause (3): (a) the site area is to be calculated under clause 4.5 (3), and (b) any area that: (i) has a length or a width of less than 1 metre, or (ii) is greater than 500mm above ground level (existing), is not to be included in calculating the proportion of landscaped area, and (c) any deck or balcony or the like (whether enclosed or unenclosed) is not to be included in calculating the site coverage if: (i) it is 2.4 metres or more above ground level (existing), as measured from the underside of the structure and the area below the structure is able to be landscaped or used for recreational purposes, or (ii) the finished floor level is 500mm or less above ground level (existing). 1. Site coverage is defined in LEP 2013 as follows: site coverage means the proportion of a site area covered by buildings. However, the following are not included for the purpose of calculating site coverage: (a) any basement, (b) any part of an awning that is outside the outer walls of a building and that adjoins the street frontage or other site boundary, (c) any eaves, (d) unenclosed balconies, decks, pergolas and the like. 1. Clause 4.6 Exceptions to development standards is in the following terms: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. Leichhardt Development Control Plan 2013 (DCP 2013) includes the following relevant objectives for alterations and additions at C1.3: a. complements the scale, form and materials of the streetscape including wall height and roof form; b. where an alteration or addition is visible from the public domain it should appear as a sympathetic addition to the existing building; c. makes a positive contribution to the desired future character of the streetscape and any heritage values associated with it; d. is compatible with neighbourhood character, including prevailing site layout; e. protects existing residential amenity, including the retention of adequate private open space and ensuring adequate sunlight, natural ventilation and privacy to the existing dwelling and surrounding dwellings; f. maintains views and glimpses from the public domain to natural and built elements that contribute to local character and sense of place; g. reasonably protects views obtained from surrounding development and promotes view sharing; h. retains existing fabric wherever possible and maintains and repairs, where necessary, rather than replaces the fabric. 1. Additions at first floor are to ensure that the addition does not dominate, but is subordinate, to the existing dwelling, at C12(c). 2. DCP 2013 includes the following relevant objectives for heritage conservation areas at C1.4: a. does not represent an unsympathetic alteration or addition to a building; b. encourages the protection, restoration, continued use and viability of buildings for their original purpose; c. encourages the removal of unsympathetic elements; d. is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter (Refer to: http://australia.icomos.org/publications/charters/; e. conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting; f. maintains the visual unity of groups of buildings, in particular semi-detached and attached terraces; g. makes an appropriate visual and physical distinction between the existing building and new parts of the building; h. protects and enhances views of the existing building from the public domain; and i. new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter. 1. DCP 2013 includes the following objectives for corner sites, at C1.5: a. respects the visually prominent role of corner sites; b. is compatible with the adjoining buildings; and c. clearly delineates between old and new buildings. 1. The site is located within the Balmain Village Sub Area and the desired future character for this precinct is described in Section C2.2.2.1(b) of DCP 2013. 2. DCP 2013 includes objectives and controls for the 'building location zone' (BLZ) being the part of the site where it can reasonably be expected that a building can be located, at C3.2. In determining whether to permit a variation to the general pattern of development within the street, the onus is on the applicant to show that the amenity of adjacent properties is protected; the proposed development will be compatible with the existing streetscape and the desired future character and scale of surrounding development; that the proposal is compatible in terms of size, dimensions, privacy and solar access of private open space; that retention of vegetation and opportunities for new significant vegetation is maximised; and the height of development has been kept to a minimum, at C6.