Land and Environment Court New South Wales

• Medium Neutral Citation: Pockley v City of Sydney Council [2013] NSWLEC 1100
• Hearing dates: 18 March 2013
• Decision date: 19 March 2013
• Jurisdiction: Class 1
• Before: Tuor C

Decision

(1)The appeal is upheld.

(2)The development application for alterations and additions at 34 Walter Street, Paddington, is approved subject to the conditions in Annexure A.

(3)The exhibits, except Exhibits 1, A and F, may be returned.

• Catchwords: DEVELOPMENT APPLICATION: alterations and additions to existing dwelling. Impact on heritage significance of conservation area and solar access.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act; South Sydney Local Environmental Plan 1998; Sydney Local Environmental Plan 2012
• Cases Cited: Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC 279 Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289
• Category: Principal judgment
• Parties: Roger and Patricia Pockley (Applicant); Council of the City of Sydney (Respondent)
• Representation: Counsel; Dr S Berveling, barrister (Respondent); Solicitor; Council of the City of Sydney (Respondent)
• File Number(s): 10035 of 2013

Judgment

This determination was given extemporaneously and has been edited prior to publication

1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against condition 2 of a development consent imposed by the Council of the City of Sydney (council) on development application D/2012/1526 for alterations and additions to an existing terrace at 34 Walter Street, Paddington (site).

2 Condition 2 requires the first floor extension at the rear of the dwelling (bedroom two) to be deleted. The key issues in dispute between the parties are whether the proposed first floor extension would:

(1) have an adverse impact on the significance of the existing terrace row and the conservation area, and

(2) result in unacceptable overshadowing of the adjoining property to the south, 36 Walter Street.

Site and locality

3 The site is rectangular in shape with a 3.6 m wide frontage to Walter Street, a depth of 18 m and a site area of 69.8 m2. The site has a two storey terrace with a single storey skillion wings and additions. It is at the end of a row of five similar Victorian terraces (26 to 34 Walter Street).

4 At the rear of the site is a narrow right-of-way, which is accessed between 17 and 19 Martin Street. The site adjoins a three storey terrace with a rear ground and first floor extension and alterations in the roof (36 Walter Street). The surrounding area is predominantly residential and the site is within the Paddington South Heritage Conservation Area (HCA).

Planning controls

5 At the time the application was lodged, the site was zoned 2(a) Residential (Low Density) under South Sydney Local Environmental Plan 1998 (LEP 1998). The development is permissible with consent.

6 Clause10 of LEP 1998 requires that development must be consistent with the zone objectives. The objectives for the 2(a) zone relevantly include:

1(c) to ensure that built form (including alterations and additions) is in character with the surrounding building environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment.

7 Clause 22 of LEP 1998 requires that consent must not be granted unless it meets heritage aims which include:

(e) to ensure any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting.

8 Sydney Local Environmental Plan 2012 (LEP 2012) was made on 14 December 2012. It includes a savings provision (cl 1.8A), which requires that the application must be determined as if the plan had been exhibited but not commenced. Consistent with the decisions of the Court (see Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC 279 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289), LEP 2012 should be given considerable weight and the Court should be satisfied that the proposal is consistent with the planning framework established by the plan.

9 LEP 2012 permits a maximum building height of 9 m (cl 4.3) and a maximum floor space ratio (FSR) of 1.5:1 (cl 4.4). Clause 5.10 includes provisions for development in heritage conservation areas and requires that the effect of the proposed development on the significance of the heritage conservation area must be considered.

10 Sydney Development Control Plan 2012 (DCP 2012) also commenced on 14 December 2012. It does not include a savings provision of relevance to the site and it repealed South Sydney Development Control Plan 1997 (DCP 1997) and City of Sydney Heritage Development Control Plan 2006 (DCP 2006). Dr Berveling, for the council, submits that DCP 1997 and DCP 2006 are part of the planning framework established by LEP 1998, and are effectively saved by cl 1.8A of LEP 2012. I accept that the DCPs and DCP 2012 are relevant matters to consider in the determination of this application.

11 DCP 2006 and DCP 2012 include similar provisions in respect of development in conservation areas. Of particular relevance are the controls for additional storeys (s 4.1.4.6 in DCP 2012 and s 6.7 in DCP 2006). These sections relevantly provide:

Upper floor additions to the rear that retain the main form of the building and do not exceed the main roof ridge height are generally more acceptable than changes that alter the height, scale or form of the original building.

(4) where the rear of the terrace group displays a consistent form and strong rhythm visible from a public space, additions are restricted to the ground floor.

12 DCP 1997 and DCP 2012 include provisions for solar access to adjoining developments (s 4.1.3.1 of DCP 2012 and s 5.1 of DCP 1997).

Evidence

13 The matter commenced on site, as a conciliation conference under s 34AA of the Land and Environment Court Act (LEC Act). The parties did not reach agreement and a hearing was held forthwith. The parties agreed that the site view and discussions on site could be evidence in the hearing. During the conciliation conference, the applicant suggested changes to the upper floor addition, however the council did not have delegation to deal with these suggestions which resulted in the termination of the conciliation conference.

14 The Court heard from the owner of the adjoining property (36 Walter Street) and her representative, Ms D Laidlaw. Her principal concern was the extent of overshadowing from the development to the windows of her kitchen and living area, which was demonstrated in the shadow diagram she had had prepared by JM Computer Modelling. She recognised the changes that had been made to the ground floor of the proposal but requested that RLs be included to clarify the finished height of the addition at the ground level. She acknowledged that to achieve greater solar access to the kitchen windows would require deletion of the first floor addition. Some improvement to solar access to the living room French doors could be achieved by reducing the length of the first floor addition by some 300 to 400 mm.

15 The Court heard heritage evidence from Mr S Georges, for the applicant, and Mr J Poulton, for the council. Mr Georges also provided planning evidence on behalf of the applicant with Mr R Hand, on behalf of the council.

Impact on the heritage conservation area

16 Mr Poulton initially held the opinion that the rear of the row of terraces and consequently the proposed first floor addition would be visible from a "small lane", which is a public place and therefore the proposal did not meet the requirements of s 4.1.4.6(4) of DCP 2012 and s 6.7 in DCP 2006. During the hearing, he agreed that the "small lane" is not a public place as it is a right of footway in private ownership. The proposed addition would therefore not be visible from a public place and would meet the requirements of s 4.1.4.6(4) of DCP 2012 and s 6.7 of DCP 2006. Despite his agreement, Mr Poulton maintained his opinion that the proposed upper storey addition did not respect the original form and massing of the terrace row (s 3.9.7(3)(a) of DCP 2012) or the objectives for alterations and additions to minimise interventions with the original building and respect the uniformity of a group of buildings (s 4.1.4 of DCP 2012).In Mr Poulton's opinion, any addition to the building should be restricted to the ground level and roof space.

17 Mr Georges recognised that the row of terraces displays a consistent form and strong rhythm but considered that the proposed addition respected the existing terrace and was an appropriate addition for the building and a model for other buildings in the row. Further, he noted that the changes to the front of the terrace, including reinstating the balcony, would enhance its contribution to the HCA. Mr Georges explained the constraints of providing an attic roof conversion due to the stair configuration and that the proposed upper level was a modest addition which provides for a second bedroom on the same level as the main bedroom and new bathroom.

Findings

18 DCP 2012 and DCP 2006 recognise that additions to contributory items in the HCA will occur. They seek to restrict changes to the main form of the building, particularly from the street. Upper floor additions to the rear of a terrace group that display a consistent form and strong rhythm visible from a public place are not permitted.

19 The site is part of a row of terraces, which is a contributory element in the HCA. None of the terraces have upper floor additions, however the rear of the terraces, other than the roof forms, is not visible from a public place and there is limited visibility from the right of footway at the rear of the properties.

20 Given the small size of the terraces and their sites it is likely that there will be pressure for additions to better meet contemporary accommodation needs. I accept Mr Georges' evidence that the upper level addition is appropriate and provides a suitable model for additions to the other terraces in the row. It is of similar height, scale and extent as the first floor addition of the adjoining dwelling at 36 Walter Street. I am satisfied that it will not adversely impact on the heritage significance of the HCA.

Solar access

21 Mr Hand considered that the second storey would result in unacceptable overshadowing impacts on the windows and courtyard of 36 Walter Street. He considered that the overshadowing of Window 5 to the kitchen did not meet the requirements of DCP 1997 as it did not maintain two hours of sunlight between 9 am and 3 pm in midwinter. He accepted that solar access to Window 4 to the French doors to the living area met this requirement, but that the reduction in sunlight would result in unacceptable amenity impacts.

22 Mr Hand accepted that the proposal met the requirements in DCP 2012 in relation to overshadowing of the windows, as they are side windows along a boundary. Mr Hand also considered that the additional overshadowing of the courtyard was unacceptable and did not comply with DCP 1997 and DCP 2012 as it created additional overshadowing where solar access is already less than two hours. In Mr Hand's opinion, condition 2 should be retained and the upper level addition deleted.

23 Mr Georges held the opinion that the courtyard and living areas of 36 Walter Street are significantly overshadowed at mid winter due to the orientation of the site and the windows. The application has been amended by a redesign of the ground floor to reduce any additional impact. It is not reasonable, in his opinion, to require the removal or the reduction in size of the upper floor addition as this would achieve minimal increase and solar access. In his opinion, the additional overshadowing of the courtyard is acceptable as it adjoins the laundry and not the living areas. Further the proposal maintains two hours of solar access to the windows and complies with DCP 1997 and DCP 2012. The amount of solar access is already limited and this is further reduced, however, this would not materially affect the amenity of 36 Walter Street.

Findings

24 Section 5.1 of DCP 1997 provides:

Solar access reaching principal living area windows and to a minimum of 50 % of the private open space is maintained for at least two hours, between 9 am and 3 pm at the winter solstice (21 June).

New development does not create any additional overshadowing where solar access is less than two hours between 9 am and 3 pm at the winter solstice. This control does not apply to windows on a side boundary or only separated from a side boundary by a passageway.

25 DCP 2012 has the same control where there is less than two hours of solar access. The experts agree that the courtyard does not receive two hours of sunlight but disagree on whether the additional overshadowing is acceptable. The courtyard is almost in total shadow during mid winter other than a small patch near the laundry. Although it is not clear from their drawings, the additional overshadowing of this area principally results from the single storey addition which council has agreed is acceptable. Furthermore the small patch of sunlight would provide little amenity for the living areas of the dwelling of 36 Walter Street.

26 Similarly, the windows to the living area and kitchen area receive limited solar access currently due to their orientation towards the north and to the side boundary and solar access to these windows is difficult to maintain.

27 The applicant has already amended the proposal to reduce overshadowing impacts from the ground floor. To achieve further material benefits would require the deletion of the upper floor addition. I do not consider that this is reasonable given that:

• the proposal is below the height and FSR control in LEP 2012 and DCP 1997.
• the proposal maintains two hours of solar access to the windows, other than to Window 5. The reduction in solar access to this and Window 4 would not result in a significant reduction to the amenity of these rooms given that they already receive limited solar access.
• DCP 2012 permits overshadowing of windows along side boundaries except in certain circumstances. Mr Hand agrees that the proposal meets the requirements of DCP 2012.
• the proposed second storey addition provides a second bedroom on the same level as bedroom 1 and the new bathroom. It is modest in size and not an unreasonable level of accommodation.

28 For these reasons, I accept that the proposal is consistent with the objectives of the 2(a) zone in LEP 1998 and meets the relevant requirements of DCP 1997, DCP 2006 and DCP 2012. The development application is therefore approved without condition 2 in its current form. However a condition that limits the RL of the southern boundary wall is included.

Orders

29 The Orders of the Court are:

(1) The appeal is upheld.

(2) The development application for alterations and additions at 34 Walter Street Paddington, is approved subject to the conditions in Annexure A.

(3) The exhibits, except Exhibits 1, A and F, may be returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 14 June 2013