Land and Environment Court New South Wales

• Medium Neutral Citation: Benson McCormack Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 1062
• Hearing dates: 27 February 2012
• Decision date: 06 March 2012
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is dismissed.

2. Development Application No. D/2010/85 for a first floor addition, a plunge swimming pool and a single carport is refused consent.

3. The exhibits, other than exhibits 1, 3, 4 and B, are returned.

• Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling, height/bulk, privacy, view sharing, heritage/residential character
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140; Pafburn v North Sydney Council [2005] NSWLEC 444
• Texts Cited: Leichhardt Local Environment Plan 2000; Leichhardt Development Control Plan 2000
• Category: Principal judgment
• Parties: Benson McCormack Pty Ltd (Applicant); Leichhardt Council (Respondent)
• Representation: Ms H Irish (Applicant); Mr G Green (Respondent); Shaw Reynolds Bowen & Gerathy (Applicant); Pikes Lawyers (Respondent)
• File Number(s): 10916 of 2011

Judgment

1 COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No D/2010/85 (the application) by Leichhardt Council (the council) for alterations and additions to an existing dwelling house, including a first floor addition, a plunge swimming pool and a carport accessed from the rear laneway at 64 Campbell Street, Balmain (the site).

2 The appeal was subject to mandatory conciliation and arbitration on 27 February 2012 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 the adjacent area and neighbouring properties and heard from a number of resident objectors and supporters.

3 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).

Issues

4 The contentions in the matter are whether:

• The proposed first floor addition will adversely impact on the visual setting on the existing small detached cottage and heritage items in the vicinity of the site;
• The proposal is inconsistent with the Desired Future Character of the Mort Bay Distinctive Neighbourhood;
• The impact of the non-compliance with the side setback variation criteria in Part B1.2 of DCP 2000; and
• The impact of the proposal on the residential amenity of adjoining and nearby properties by reason of height/bulk, character, privacy and views.

The site and its context

5 Number 64 Campbell Street, Balmain is located on the north-western side of Campbell Street, between Trouton Street and Mort Bay. The rear of the site backs onto Campbell Lane. The site has a frontage of 9.69 m and an area of 317.2m 2 . The site contains a single storey timber cottage with a hipped metal roof and a contemporary single storey rear extension with a hardstand area for parking accessed from the rear lane. The site falls towards the rear and towards the harbour at the bottom of Campbell Street, to the north-east.

6 Number 62, to the southwest of the site, contains a two storey dwelling. Number 66, to the northeast of the site, contains a single storey cottage with attic rooms and a contemporary rear addition.

7 The area consists of a dense pattern of development with a rich architectural heritage, of which many houses date from the 19 th century. The topography of the neighbourhood forms a natural basin around Mort Bay Park with harbour vistas.

Background and the proposal

8 The council refused development application D/2010/85 on 12 April 2011. Amendments were then made to the proposal, including changes to the roof design and a reduction of the size of the first floor rear deck and submitted to council for a s.82A review of council's determination. The s 82A review has not been determined by council. The s 82A amended proposal (the proposal) is now before the Court.

The planning framework

9 The site is located within the Residential zone pursuant to Leichhardt Local Environmental Plan 2000 (LEP 2000) and the proposal is permissible with consent.

10 The site is located within the Balmain Heritage Conservation Area. Clause 15 of LEP 2000 provides relevant objectives for heritage conservation, including:

(a) To protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas and provide measures for their conservation; and

(c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items.

11 The site is subject to cl 16(8) of LEP 2000, 'Conservation Areas', which relates to development within a conservation area and states:

Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to:

(a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or Aboriginal site that would be affected, and the contribution it makes to the conservation area, and

(b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development.

12 The site is within the vicinity of heritage items listed in Schedule 2 of the LEP 2000; including 68-70 Campbell Lane - formerly Kinsale group of houses; 72 Campbell Street - house; 1-7 Trouton Street - four terrace houses; 19 Trouton Street - The Old Place (two storey sandstone house) and 1-15 Wells Street - Yeend's Terrace. The site is therefore subject to cl 16(7) of LEP 2000, 'Development in the vicinity of heritage items', which states,

Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.

13 A maximum floor space ratio (FSR) of 0.7:1 applies under cl 19(2) of LEP 2000. The proposal complies with a FSR of 0.68:1. A minimum landscaped area of 40% of site area is required under cl 19(3) of LEP 2000, of which 25% must be soft landscaped area. The proposal does not comply with the minimum landscaped area requirement, and a State Environmental Planning Policy No 1 - Development Standards objection was submitted . The landscaped area of the proposal is not a contention between the parties.

14 The site is subject to the provisions of Leichhardt Development Control Plan 2000 (DCP 2000), under which the site is located within the Campbell Street Hill area of Mort Bay Distinctive Neighbourhood.

15 DCP 2000 is divided into four parts. Part A deals with general information, including neighbourhood precinct descriptions and controls and Part B provides controls for residential development. Under Part A, Mort Bay Distinctive Neighbourhood (10.6.5) includes descriptions of Landform and Existing Character and controls for Desired Future Character and Neighbourhood Controls. The Desired Future Character section is divided into urban form, building elements and landscape controls. These include:

Urban Form

• Campbell Street and east of Campbell Street was developed earlier and has a character closer to that of East Balmain, and parts of Gladstone Park. Most buildings are attached and built to the street alignment, with many being unadorned. Two storey is more common, where a 6m wall height is appropriate. Pitched and complex roofs are appropriate.
• Preserve view lines to the north and east over Mort Bay by stepping buildings with the prevailing topography.
• Conserve the rhythm of the neighbourhood by maintaining the lot sizes, housing style and prevalence of hipped and pitched roofs. Preserve the established setbacks for each street.

Building Elements

• Preserve the consistency and simplicity in built form, style and materials of the neighbourhood.
• Maintain the existing roof forms, setbacks and fencing styles prevalent in each street.

16 Controls under Part B - Residential Development of the DCP 2000 include B1.2 Building form, envelope and siting:

• Building location zone (BLZ): The dwelling is to respect the existing setbacks on adjoining properties and the street alignment by being located within the average front and rear setbacks of both the adjacent buildings on either side of the subject site. This includes first floor additions to existing dwellings.
• Minimum side setbacks from the side boundaries are determined according to a graph which illustrates that new development is required to sit within a plane measured from a height of 2.4m at ground level along the side boundaries, then projected at 45 degrees over the site.

B1.5 Elevation and materials:

• Development should take reference from and complement the existing character of the streetscape in terms of scale, architectural style and materials. Alternatives may be considered at the discretion of Council.
• Preferred roof forms are hipped and gabled with a pitch between 30 degrees and 45 degrees. Other roof forms may be appropriate and these will be considered at the discretion of Council.

B3.4 Access to views:

Where views are currently enjoyed from existing buildings or public places, new development should minimise obstruction of those views.

• Reducing the height and bulk of the building;
• Minimising floor to ceiling heights.

17 B4.2 relates to the conservation of small detached houses. The principles of this control can be summarised as the prevention of demolition or unsympathetic additions to small houses that contribute to the area, on the basis that:

Modest houses in their garden settings, usually single storeyed and often timber, contribute to the character of the bulk of Leichhardt's residential areas. Small houses are under increasing threat of unsympathetic enlargement with increasing pressure to maximise floor space, or demolition for larger houses, or multi-dwelling development.

The intent is to conserve the diversity of houses both in terms of the variety in a particular street, and the contrasts within the suburbs making up Leichhardt.

18 The existing contemporary single storey rear addition to 64 Campbell Street maintains the overall form of the original cottage, such that it can still be appreciated as a small detached house. Therefore the controls under B4.2 of the DCP 2000 must be taken into account in assessing the proposal.

The Conciliation Phase

19 As part of the conciliation phase of the hearing, the parties and their experts discussed a number of possible amendments to the proposed development. Amendments offered by the applicant, with a view to an agreement being reached between the parties, included:

• Adjusting the position of the north-eastern wall of the proposed first floor addition, over the original cottage, so that the wall would sit 400mm behind the line of the existing rear hip rafter on the northern side, instead of along the line of the rear hip rafter;
• Remodelling the roof profile of the proposed new roof for a portion of the overall roof, behind the existing ridge of the original cottage, to reduce the height of the roof to the equivalent eave height of No. 62 Campbell Street;
• Deleting the first floor void over the side entry; and
• Lower the pool by 250mm and provide a 950mm obscure glazed splashguard/fence.

20 Council's experts agree that the deletion of the first floor void over the entry and the modification of the side entry to a single storey addition, extending to the south-western boundary shared with No 62, is acceptable and therefore the contention regarding the non-compliance of the two storey entry on the southern boundary with the set back controls is resolved between the parties. The council's experts did not agree that the remaining amendments offered were sufficient to mitigate the impacts of the proposal and an agreement was not reached.

21 The applicant's experts expressed the view that any further amendments to the proposed first floor addition, including reducing the finished floor level of the first floor to reduce the overall height of the proposal or confining the first floor addition to the area of the existing contemporary single storey addition behind the original cottage, as suggested by Council's planning expert, Ms Laidlaw, would result in a floor area that was too small to house the kitchen and living areas of the dwelling on the first floor and would make the proposal unviable from the applicant's point of view.

Evidence

22 Expert evidence was heard from Mr Turrisi (planning) and Mr Staas (heritage) for the applicant and Ms Laidlaw (planning) and Mr McDonald (heritage) for the council.

23 The Court, in the company of the parties and their experts conducted a view of four neighbouring properties and heard from an occupant at each property. The perceived impacts raised can be summarised as follows:

• The resident of 66 Campbell Street, is concerned that the occupants of 64 Campbell Street will be able to see from the proposed first floor windows into the windows of his two front rooms, including a bathroom and front courtyard. They are concerned that the proposed first floor deck will over look their rear garden and that the proposed pool fence will project above the existing boundary fence.
• The resident of 13 Trouton Street is concerned that the view of the Sydney Harbour Bridge from the main bedroom window will be obscured.
• The resident of 19 Thames Street is concerned that the proposed first floor living area will overlook their kitchen and courtyard.
• The resident of 3 Wells Street is concerned that they will be able to see into the proposed bathroom, through the window in front dormer from their living room and that the living room lights on the first floor will be visible from her living room.

Height/bulk and privacy

24 The planning experts agree that the proposal does not comply with the Landscaped Area control in cl 19(3)(b) of LEP 2000 and they agree that the non-compliance is not a reason for refusal.

25 The planning experts agree that the proposal does not comply with the side setback control in Part B1.2 DCP 2000. The experts agree that the breach of the side setback control is acceptable, however Ms Laidlaw, for the council, contends, only if 'the excessive dimension between the first floor height and ground level at the rear' is reduced in order to address the variation criteria set out in DCP 2000 (B1.2), which states:

Council may allow buildings to side boundaries where:

• The pattern of development is not compromised;
• Higher portions of buildings are setback in accordance with the above control;
• The bulk and scale of development is minimised by reduced floor to ceiling heights;
• The potential impacts on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised;
• Reasonable access is retained for necessary maintenance of adjoining properties.

26 Mr Turrisi considers the setbacks are acceptable and consistent with setbacks in the area, as the first floor addition has been designed to respect the front portion of the cottage and retain it as the dominant element when viewed from the street; the proposal creates neither privacy nor shadowing impacts and the proposed setbacks reinforce separation to the neighbouring properties.

27 The planning and heritage experts agree that a single level side entry structure extending to the southern boundary is acceptable.

28 The planning experts disagree on the reasonableness and acceptability of the impact on neighbours in terms of privacy. Ms Laidlaw states that the location of the living area on the upper level is an atypical and undesirable arrangement, which could only be supported if the design was able to maintain a comparable level of privacy as if it was used for bedrooms. Mr Turrisi cited the inclusion of the fixed privacy screens at either end of the first floor balcony to provide privacy to the rear gardens of the adjoining neighbours.

29 The planning experts disagree on whether the proposed first floor windows on the north-eastern elevation would overlook 66 Campbell Street. In Mr Turrisi's opinion, the setback of 66 Campbell Street from the side boundary, the difference in floor height of the proposal above 66 Campbell Street and the proposed fixed joinery under the windows ensures that there will be little or no impact on the privacy of 66 Campbell Street. Ms Laidlaw, on the other hand, states that the extent of glazing along the proposed north-eastern elevation and the deck will result in the occupants of 64 Campbell Street overlooking 66 Campbell Street. Ms Laidlaw suggests that the impact could be reduced by substantially increasing the solid to glazed proportion of the north-eastern wall.

View sharing

30 Following the erection of height poles to indicate the approximate position of the proposed development, the occupants of 13 Trouton Street raised the issue, with council, of the impact of the proposal on views enjoyed from their property. View sharing was not a contention raised by the council.

31 Both planning experts addressed the issue of the impact on the existing views from 13 Trouton Street through the principles on view sharing in Tenacity Consulting v Waringah [2004] NSWLEC 140. These state:

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

32 On the first step in Tenacity , there is agreement between the planning experts that the view to be affected was a view of the Sydney Harbour Bridge. Both planning experts describe the view as "iconic". Their assessment was helped by the installation of height poles for the site inspection that identified the approximate location and height of the proposed development.

33 The second step requires consideration of the part of the property where the views are obtained. There is agreement that the only location that the Sydney Harbour Bridge could be viewed from is the main bedroom. There is disagreement between the experts as to whether the view could be classified as being over a side boundary. Ms Laidlaw, on behalf of the council, contends that the view is over the rear boundaries of the Trouton Street properties and across the rear of the properties fronting Campbell Street and that it could potentially be protected by future development at the rear of the Campbell Street properties conforming to the BLZ. Mr Turrisi, for the applicant, contends that the view is in part over a side boundary and is only available if one stands at the window's edge.

34 The third step requires an assessment of the extent of the impact. The experts agree that the proposed development would obscure the Sydney Harbour Bridge view from the main bedroom entirely in both a sitting and standing position.

35 The fourth step requires an assessment of the reasonableness of the proposal that is causing the impact. According to Mr Turrisi, FSR is the key control that governs bulk and scale and the proposal is compliant. The principle acknowledges that a proposal which complies with the planning controls would be considered more reasonable that one that breaches them.

36 According to Ms Laidlaw, the height of the proposal could be reduced by 700-800mm and this would allow for view sharing, as a view of the arch of the Sydney Harbour Bridge would be retained, when viewed from the bedroom of 13 Trouton Street. Mr Turrisi maintains that a reduction in the height of the proposal would still result in a proportion of the view of the Sydney Harbour Bridge being obscured. The planning experts therefore agree that a reduction in the height of the proposal would still result in a portion of the iconic view being obscured.

Heritage/residential character

37 The heritage experts agree that the proposal has minimal impact on any of the heritage items in the vicinity of the site; that the proposed front dormer window is of an appropriate scale and proportion and would be an acceptable addition to the front roof plane of the original cottage; that the roof cladding of the original cottage requires replacement and that the extent of glazing is not a significant heritage issue in terms of its impact on the streetscape or the Balmain Heritage Conservation Area.

38 The heritage experts agree that the proposal would not be readily visible from Sydney Harbour.

39 The heritage experts disagree on the impact of the first floor addition on the streetscape and integrity of the cottage. Mr Staas, for the applicant, contends that the proposal will only be visible from limited sections of the public domain where it will also be partially screened by the existing street tree. He considers that the proposal is well resolved and respects the principal presentation of the original building to the street, which is its major contribution to the streetscape character within the conservation area. Mr McDonald, for the council, contends that the proposed first floor addition will be visible in views from Campbell Street, in such as way that the existing roof shape is severely compromised. In his opinion, the form of the addition and its impact on the hipped form of the existing cottage is unsympathetic to the existing building form and character and therefore intrusive in the conservation area and streetscape of Campbell Street.

Conclusion and Findings

Height/bulk and Privacy

40 The Mort Bay Distinctive Neighbourhood control for urban form requires buildings to respond to the land form, 'Preserve view lines to the north and east over Mort Bay by stepping buildings with the prevailing topography' . The proposal does not respond to the natural topography of the site, which falls towards the rear of the site and towards the harbour, to the northeast.

41 I disagree with Mr Turrisi that FSR is the key control that governs bulk and scale and as the proposal is compliant with the FSR control, the bulk of the proposal is acceptable. FSR is a two dimensional measure, and while it provides a cue to the overall bulk of a development, it does not account for the height of a proposal. Bulk is a three dimensional concept. The rear wall elevation of the proposal is over 7m above ground level and does not comply with the 6m wall height identified as appropriate in the DCP 2000, Mort Bay Distinctive Neighbourhood Desired Future Character description.

42 I do not accept that the floor level of the first floor addition must be 3.69m above the existing ground floor level (of the contemporary rear addition at RL11.94) in order to provide a consistent floor level with the attic space within the original cottage and because of the existing ceiling height in the rear addition, as stated by the applicant's experts. The existing roof over the rear addition is a skillion roof and the removal of this roof would allow for a finished floor level for the first floor at a lower level than the proposed first floor level of RL15.63. It is not essential to have a consistent floor level between the first floor addition over the existing rear extension and the attic space within the original cottage.

43 I do not accept that the first floor addition cannot be confined to the existing footprint of the contemporary single storey rear addition because there would insufficient floor space for the kitchen, dining and living area, as stated by the applicant's experts. The existing kitchen, dining and living area are contained within the contemporary rear extension on the ground floor and it is conceivable that a similar floor plan could be recreated within the same footprint on the first floor with the addition of a stair for access.

44 I agree with Ms Laidlaw that the breach of the side setback control is acceptable if the proposal seeks to comply with the variation criteria, namely, minimising bulk and scale impacts by reducing the floor to ceiling height of the ground floor behind the original cottage. This would address the excessive height of the proposal, reduce the overall bulk of the form and allow a proposed rear first floor addition to appear deferential to the original cottage.

45 Loss of privacy is raised in relation to potential overlooking form the proposed first floor deck to the rear garden of 66 Campbell Street and the rear courtyard and kitchen of 19 Thames Street. The impact of the proposed first floor addition on the amenity of the neighbours is acceptable and the provision of privacy screening at either end of the deck would provide some protection for over looking of the rear gardens at 62 and 66 Campbell Street. Given the density of development within the Mort Bay neighbourhood, the steep topography and harbour vistas, it is reasonable to accept that a first floor addition at 64 Campbell Street will have some impact on the privacy of neighbouring rear gardens.

46 Loss of privacy is also raised with regard to the proposal to locate the living areas on the first floor. The use of the first floor as a living area is not a contention between the parties. Ms Laidlaw and resident objectors raised the issue of privacy impacts in relation to the use the first floor as a living area. There are examples of living areas located on upper floors, in pursuit of harbour views, both within the Mort Bay Distinctive Neighbourhood and elsewhere. The proposal to locate the living area on the first floor is reasonable and the privacy impact on adjacent neighbours is ameliorated by the fixed privacy screens at either end of the deck and the proposed internal cabinetry under the north-eastern windows.

47 The plunge swimming pool and glass splash barrier proposed immediately adjacent to the boundary with No 66 Campbell Street would adversely affect the amenity of 66 Campbell Street, as the level of the pool (RL10.8) is elevated well above natural ground level so that the coping of the pool will align approximately with the top of the existing paling fence along the boundary and the glass splash barrier will be elevated above the paling fence.

View sharing

48 Part B3.4 of DCP 2000, 'Access to Views' states,

'where views are currently enjoyed from existing buildings or public places, new development should minimise obstruction of those views.' Where a proposed development is likely to obstruct views, measures must be introduced to promote the sharing of these views. Such measures include:

• Reducing the height and bulk of the building;
• Minimising floor to ceiling heights.

49 Ms Irish, counsel for the applicant, submits that the fifth theme of the Pafburn planning principle ( Pafburn v North Sydney Council [2005] NSWLEC 444) is relevant and it states at para 24:

The fifth theme is that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime.

50 I do not accept that the proposal complies with the controls and is therefore a reasonable proposal. The rear wall elevation of the proposal above ground level is over 7 m, where a 6 m wall height is identified as being appropriate by the DCP 2000, Mort Bay Distinctive Neighbourhood Desired Future Character, Urban Form. The proposal does not comply with the side setback control and does not satisfy the variation criteria identified by B1.2 DCP 2000, to reduce bulk and scale by minimising floor to ceiling heights in lieu of achieving the required side setback.

51 The proposal before the Court will obscure the entire view of the Sydney Harbour Bridge (the bridge) from a standing position the main bedroom of 13 Trouton Street. However, it is likely that any reasonable first floor addition to 64 Campbell Street will have a significant impact on the existing views of the Sydney Harbour Bridge from the main bedroom of 13 Trouton Street, by obscuring a proportion of the bridge. The Tenacity principles concede (at paras 26 and 28) that whole views are valued more highly than partial views and that loosing a portion of an iconic view can best be assessed qualitatively. It is likely, then, that a reasonable first floor addition to 64 Campbell Street will still have an impact on the view of the bridge from 13 Trouton Street ranging from severe to devastating.

52 I therefore find that the impact of the proposal on the views of the Sydney Harbour Bridge from a standing position in the main bedroom of 13 Trouton Street is not determinative in this matter, as a more reasonable proposal is likely to still have a significant impact on the view of the Sydney Harbour Bridge from 13 Trouton Street. The retention of the view from 13 Trouton Street, in its current form, is an unreasonable expectation as the existing view is across a number of properties and is vulnerable to both development and mature trees on sites other than 64 Campbell Street.

Heritage/residential character

53 As 64 Campbell Street, Balmain is identified as a contributory item in the Balmain Heritage Conservation Area, the objectives and provisions of Part 3 the LEP 2000 and the DCP 2000 must be considered and the impact of the proposal on the heritage significance of the heritage conservation area is a determinative consideration in assessing the appropriateness of the proposal.

54 The general provisions for the development of land of LEP 2000 for conservation areas, at cl 8(b), states that particular regard must be given to:

the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development.

55 I accept the view of both heritage experts that a contemporary style for a first floor addition is appropriate and would not detract from the Balmain Heritage Conservation Area.

56 The form of the original late Victorian cottage at 64 Campbell Street remains substantially intact and that the roof planes and significant architectural features are visible from Campbell Street.

57 I consider that the proposed first floor addition, which commences at the ridge of the existing original cottage and projects beyond and above the hipped roof form of the original roof is not consistent with the Victorian character, nor the scale of the contributory item and has not been designed to minimise its impact on the original cottage, nor does it respect the architectural integrity of the cottage.

58 Having regard to the relevant planning controls and the evidence provided, I find that the proposal would have a detrimental impact on the original cottage, identified as a contributory item to the Balmain Heritage Conservation Area and that the impact is of such consequence, that the application should be refused.

Orders

59 The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. D/2010/85 for a first floor addition, a plunge swimming pool and a single carport is refused consent.

3. The exhibits, other than exhibits 1, 3, 4 and B, are returned.

Susan O'Neill

Commissioner of the Court

Decision last updated: 19 March 2012