Land and Environment Court New South Wales Medium Neutral Citation: Roesch v Council of the City of Sydney [2019] NSWLEC 1618 Hearing dates: 9 December 2019 Date of orders: 13 December 2019 Decision date: 13 December 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: (1) The appeal is upheld. (2) Conditions 8(a)(i) and 8(b) of Development Consent No. D/2019/148 are amended to permit a setback of a minimum of 120mm from side walls as measured from the inner face of the party or side walls and a minimum 3 degree pitch for the roof of the rear roof extension, subject to the conditions of consent at Annexure A. (3) The exhibits, other than Exhibit 1, are returned. Catchwords: CONDITIONS OF CONSENT – appeal against the terms of two conditions of consent of the development consent granted by the respondent – form of the rear roof extension to an existing single storey terrace house Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Adrian Roesch (First Applicant) Sandra Raskovska (Second Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: A Roesch (Litigant in person) (First Applicant) S Raskovska (Litigant in person) (Second Applicant) P Canning (Solicitor) (Respondent) Solicitors: Council of the City of Sydney (Respondent) File Number(s): 2019/307436 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the terms of two conditions of consent of Development Consent D/2019/148 for alterations and additions to an existing terrace house at 221 Victoria Street, Beaconsfield (the site) granted by the Council of the City of Sydney (the Council). 2. The appeal was subject to conciliation on 9 December 2019, 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, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. 3. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. The planning experts were not required to give oral evidence in the hearing. Background and issues 1. The Council granted development consent to D/2019/148 on 12 July 2019 subject to conditions that changed the building envelope of the proposed rear roof extension by making it narrower, without requiring the applicant to resolve the consequent changes required to the internal layout. This is, in my experience, a common cause of appeals regarding the terms of conditions of consent imposed on a development consent. In this matter, the parties agreed that the narrowing of the rear roof extension by the condition would most likely require the proposed ensuite bathroom to the attic bedroom to be deleted as there is insufficient space and head room over the stair access to the upper level for the bathroom within the approved building envelope. 2. The disputed terms of condition 8 are shown bold: "8. REAR ROOF EXTENSIONS (a) The external faces of the roof extensions to the rear of the a building are to be: (i) set back a minimum of 500mm from side walls as measured from the inner edge of the party or side walls; and (ii) set down a minimum of 200mm below the ridge line as measured along the roof slope from the ridge; and (iii) set back a minimum of 200mm from the rear wall as measured along the roof slope from the outer face of the wall. (b) The roof of the extension must have a minimum 5 degree pitch and slope down from the ridge towards the rear elevation of the property. (c) The flashing or waterproofing of the rear roof extension is not to span the roof ridge and is not to be visible from the front street. (d) The width of the roof extensions must not be more than 4 metres. (e) The external walls of the extension must be clad with weatherboards, corrugated steel or similar profiled material." 1. The applicant seeks a setback of 120mm from the inner face of the party walls on both sides of the roof extension so that the overall width of the rear roof extension is 3.04m and a minimum 3 degree pitch (the proposal). 2. The parties agreed that a minimum 3 degree roof pitch for the rear roof extension is acceptable. 3. The parties disagreed on the terms of condition 8(a)(i), as the Council seeks the retention of the condition requiring a setback of a minimum of 500mm from the inner face of the party walls on both sides and the applicant seeks the deletion of condition 8(a)(i). 4. The applicant submitted that the rear roof extension could be moved to the north, so as to have a nil setback from the inside face of the party wall on the northern side and an increased setback from the party wall on the southern side. This is not, however, the applicant's preference. The site and its context 1. The site is on the eastern side of Victoria Street, to the north of Beaconsfield Street and adjoins the Janet Beirne Reserve to the south. The single storey terrace house on the site is the southern end dwelling in a row of six. 2. The site has a width of 3.69m at the street front and a depth of 30.71m. The single storey terrace house consists of a kitchen and living areas, two bedrooms, one bathroom, an attic room, a courtyard and a garage accessed from the rear laneway. Planning framework 1. The site is zoned R1 General Residential pursuant to Sydney Local Environmental Plan 2012 (LEP 2012). 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 maintain the existing land use pattern of predominantly residential uses. 1. The site has a 9m height of buildings development standard (Height of Buildings Map Sheet HOB_011 of LEP 2012) and a 1:1 floor space ratio (FSR) development standard (Floor Space Ratio Map Sheet FSR_011 of LEP 2012). The proposal complies with both development standards and has a FSR of 0.66:1. 2. The site is not a heritage item, nor is it within a heritage conservation area. 3. Sydney Development Control Plan 2012 (DCP 2012) includes objectives and provisions for roof alterations and additions at section 4.1.5. The relevant objectives of this section are: "(a) Minimise the impact of dormers and skylights on the form, appearance and fabric of the principal roof form. (c) Minimise interference to the original form of the building." 1. Figure 4.10 of DCP 2012 includes examples of rear additions to terraces houses demonstrating appropriate building forms and Figure 4.16 requires roof extensions to be set in by a minimum of 500mm from side walls, as follows: 1. The provisions for rear roof extensions, at section 4.1.5.5 include the following: "(1) Rear roof extensions may not be appropriate: … (d) on sites where the rear of the roof is highly visible from a public place. In these instances a traditional dormer form may be permitted; … (2) Rear roof extensions are to be: (a) set back a minimum of 500mm from side walls as measured from the inner edge of the buildings side or party walls as shown in Figure 4.16; …" 1. The Locality Statement for Beaconsfield, which includes the site, is in section 2.5.2 of DCP 2012 and I have had regard to the relevant principles of the Locality Statement. Expert evidence 1. The applicant relied on the expert planning evidence of Garry Chapman and the Council relied on the expert planning evidence of Harry Choi and the expert urban design evidence of Allison Cronin. The experts prepared a joint report (Ex 3). 2. According to Mr Chapman, the variation to the side setbacks of the rear roof extension is acceptable on the following bases: * There are a variety of building forms within the locality and building catchment and the proposal is not out of character; * The original building and roof form remain discernible; * The site is not within a heritage conservation area and the proposal meets the relevant principles of the Beaconsfield Locality and is consistent with the existing pattern of development; * The built form is compatible with the terrace row and suitable for the narrow width of the site, as the extension reads as a contemporary addition to the original form of the terrace house. The variation of the 500mm side setback control will not be visually perceptible from the reserve. 1. According to the Council's experts, the variation to the side setbacks of the rear roof extension proposed is not acceptable, on the following bases: * One of the intents of the 500mm setback control in DCP 2012 is to allow a minimum width clearance for physical access and the placement of a ladder on the sloping portion of the roof. A clearance width is necessary for access for maintenance, inspection and re-painting as it allows clearance for a ladder and physical access for re-painting the parapet walls and dormer cladding; * One of the intents of the 500mm setback control is to retain an appropriate expression of the roof form when a rear roof dormer is added; * The 500mm setback control allows for the flashing to the two adjacent walls and for some of the roof material to be visible between the flashings; * The condition requiring the 500mm set in only affects the layout of the stair and bathroom and does not require any change to the bedroom layout; * The controls in DCP 2012 were created through a process of public consultation under the Act and it is in the public interest that the controls are adhered to in order to meet the aims of the DCP; * The proposal would create an undesirable planning precedent; and * The rear roof extensions to 211 and 213 Victoria Street (two of the row of six terrace houses) are not examples of positive rear roof extensions and would not be supported under the current controls. Consideration 1. I prefer and adopt Mr Chapman's evidence and I am satisfied that it is appropriate, in all the circumstances of this matter and pursuant to s 4.15(3A) of the EPA Act, to be flexible in applying the provision for rear roof extensions at section 4.1.5.5(2)(a) of DCP 2012 requiring rear roof extensions are to be set back a minimum of 500mm from side walls as measured from the inner edge of the buildings side or party walls and as shown in Figure 4.16. 2. I am satisfied that the proposal is a reasonable alternative solution that achieves the objects of the provision at 4.1.5.5(2)(a) of DCP 2012, for the following reasons: * The original roof form will continue to be clearly legible from the public domain because it is given by the masonry profile of the southern end wall of the terrace row and the masonry gable will be retained in its original and existing form; * The 120mm setback on both sides will assist in making the original roof form legible; * The narrow width of this site and the small space within the attic results in a very tight space if the rear roof extension is confined to an overall width of 2.28m, instead of the proposed 3.04m, and the applicant's brief for a small bedroom and bathroom in the attic is modest and reasonable and able to be achieved without detrimentally impacting on the legibility of the form of the original terrace house; * The proposal is to be constructed in materials that are durable and will not require re-painting and access to the party wall can be negotiated with the neighbour to their mutual benefit; * The site is not a heritage item, nor is it within a heritage conservation area and so it is appropriate to treat the preservation and legibility of the original terrace with less preciousness than if the site was identified as having heritage significance or contributing to the collective heritage significance of the area. The applicant could have proposed the demolition of the existing terrace house and the construction of a new dwelling with a FSR of 1:1 which would have significantly eroded the integrity and intactness of the terrace row. * The proposal maintains the street front elevation of the terrace house and the intactness of the street elevation of the terrace row; * There are unsympathetic rear additions to four of the terrace row; and * The proposal is a sympathetic addition to an existing dwelling and will not impact on the amenity of the adjoining reserve. 1. I am satisfied that the proposal minimises the impact of the rear roof extension, or rear dormer, on the form, appearance and fabric of the principal roof form and minimises interference to the original form of the building, consistent with its status as an existing single storey terrace house outside of any heritage conservation areas. The proposal maintains the low-scale residential character of Victoria Street and the addition is clearly legible as a proportionate and deferential, contemporary addition to a single storey terrace house. 2. I do not accept the claim that this matter forms a planning precedent for future applications because the merits of any particular application depend upon the facts and circumstances of the case and on appeal, the substantive issues joined between the parties. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Conditions 8(a)(i) and 8(b) of Development Consent No. D/2019/148 are amended to permit a setback of a minimum of 120mm from the side walls as measured from the inner face of the party or side walls and a minimum 3 degree pitch for the roof of the rear roof extension, subject to the conditions of consent at Annexure A. 3. The exhibits, other than Exhibit 1, are returned. ____________ Susan O'Neill Commissioner of the Court Annexure A (59.7 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: 16 December 2019