Aloke Holdings Pty Ltd v Council of the City of Sydney

The Site:

1. The development is proposed at 75 Hereford Street, Forest Lodge, legally known as Lot 11 DP 1023076. The site is rectangular in shape with a site area of 844.9m².
2. The subject site has its northern frontage to Alfred Road (20.56m) and is adjoined to the south by the rear boundary of 75A - 75C Hereford Street. Pedestrian access to the site from Hereford Street is provided via a right of way between 75B and 75C Hereford Street. The eastern and western side boundaries are 41.65m and 41.2m respectively.
3. The site contains a detached single-storey Victorian Regency Style dwelling house which is identified as a heritage item under the LEP 2012. The heritage experts describe the previous development of the site as follows: "The 1998 subdivision of the lot, prior to it being heritage listed, resulted in the three townhouses fronting Hereford Street being built in front of the villa, with a narrow 2.9m right of way between 75A and 75B Hereford Street to allow the house to be partly viewed from the street. The front verandah of the villa is set approximately 2.5m from the southern boundary of the reduced area of the subject lot. There is a large rear yard with a tall timber fence and gate to Alfred Road." (Exhibit 3)
4. The site is identified as locally listed heritage item 'House including interior and front fence' (1637) and is located within the Hereford and Forest Lodge heritage conservation area (C33).
5. The site contains mature trees along the boundary with Hereford Street.

The Locality:

1. Adjoining the site to the immediate east at 69 Hereford Street is a residential development containing 19 x 2-storey plus attic dwellings over basement car parking for 42 cars and strata subdivision. 10 dwellings front Alfred Road to the north of the site and 9 dwellings front Hereford Street to the south. This development has a significant setback to Hereford Street of approximately 12m and the approval included the dedication of a footpath to Council.
2. Adjoining the site to the immediate south at 75A-75C Hereford Street is 3 x 2-storey terrace dwellings with parking to the rear. The subject site historically had a primary, southern frontage to Hereford Street prior to the subdivision of the front of the site and construction of the 3 dwellings approved in 1998.
3. Adjoining the site to the immediate west at 77-85 Hereford Street is a 4-storey residential flat building. The site is also adjoined to the west by a triangular lot known as 5C Alfred Road. This land is owned by the State and contains an area of open space and several mature trees.
4. To the north of the site are Alfred Road and the rear of residential properties that front Wigram Road. Alfred Road is characterised by rear lane development including garages and garages with studios above.

Public Submissions:

1. In accordance with the provisions of the Sydney Development Control Plan 2012 (DCP 2012), the development application was notified to adjoining and nearby properties. Council received 40 submissions objecting to the application. The objections raised the following main issues:

• Negative impact on the heritage item, streetscape and heritage conservation area;
• Excessive height, bulk and scale;
• Non-compliance with height in metres and in storeys;
• Overshadowing of the subject site and neighbouring properties;
• View loss;
• Loss of privacy to the rear yards and windows for existing residents in Alfred Road;
• Poor amenity for future residents;
• Loss of breezes;
• Inadequate setback from Alfred Road;
• Inconsistency with neighbourhood character;
• Unacceptable removal of trees;

1. At the commencement of the proceedings, on-site evidence was heard from a number of objectors to the application. The issues raised by these objections repeated many of the issues in the proceeding with the following additional concerns:-

• Overbearing nature of the development in proximity to the adjoining properties.
• The proposal fails to follow the setback and footpath alignment of the most recent developments in Alfred Road.
• That the heritage of the property is unique and represents the oldest surviving building in Forrest Lodge. Whilst the development proposes to restore and protect the dwelling the context and the curtilage of the dwelling will be negatively impacted by the development.
• The removal of the existing trees in the frontage to Alfred Road will affect the outlook for adjoining and proximate properties and the proposed development provides an inadequate setback to replace these planting with appropriate landscaping.
• Further, the removal of the trees will detrimentally affect the microclimate of Alfred Road and any native fauna utilising the trees.
• Lack of footpath provision will result in children walking on Alfred Road. The proposed driveway location creates a concern for pedestrian safety.
• The provision of residential bins in the limited setback to Alfred Road is unsightly.
• Concern regarding the management of any construction traffic should the development be approved.
• The approval of this development would result in a negative precedent that may make the sale and redevelopment of the adjoining crown land attractive.

Heritage Listings and Significance:

1. The subject site is locally heritage listed under LEP 2012 as Item No. I637: House including interior and front fence. The State Heritage Register (SHR) listing includes the following statement of significance: "75 Hereford Street contains a rare surviving Victorian Regency style villa within Forest Lodge and Glebe. The site provides evidence of the subdivision and development of Crown Land initially allocated as Church and School Land. It is associated with Michael Chapman, a prominent Forest Lodge resident, property owner and politician and his family." (Exhibit 1)
2. Further, the listing includes the following Recommended Management: "The building should be retained and conserved. A Heritage Assessment and Heritage Impact Statement, or a Conservation Management Plan, should be prepared for the building prior to any major works being undertaken. There shall be no vertical additions to the building and no alterations to the principal facades of the building other than to reinstate original features. The principal room layout and planning configuration, as well as significant internal original features including ceilings, cornices, joinery, flooring and fireplaces, should be retained and conserved. Any additions and alterations should be confined to the rear in areas of less significance, should not be visually prominent and shall be in accordance with the relevant planning controls. A schedule of Conservation Works should be prepared by a suitably qualified heritage practitioner, and these works carried out to enhance the significance of the property. This should include reconstruction of more sympathetic front and side verandah roofs, based on documentary and physical evidence. The curtilage of the villa has been compromised by 1998 subdivision of the property and there should be no further changes within or adjoining the site that adversely impacts on the setting, curtilage and significance of the item." (Exhibit 1)
3. Consistent with the preceding the Applicant prepared a Heritage Impact Statement (HIS) to support the proposed development. At 4.3: Statement of Significance the HIS provides the following summary of the author's assessment of the item against the seven criteria in: 'Assessing Heritage Significance' produced by the Office of Environment and Heritage in 2015. "The existing building is a generous and handsome one storey example of a Victorian Regency dwelling, originally set within a large rectangular allotment. The Heritage Inventory Sheet describes the dwelling as rare. The dwelling was constructed in c.1877 (or earlier) in the still-developing Glebe and Forrest Lodge areas. It provides a snapshot of the architectural style and the original subdivision layout, consisting of large blocks fronting Hereford Road. Research has not provided evidence of any social significance of the subject site. There is very limited readily available information on the site which indicates the dwelling is not strongly associated with any particular community or cultural group. While the site has been modified internally and externally it remains relatively intact. Internal modifications including late Victorian and Federation era 'modernisations', while providing Victorian detailing, have retained the overall layout of the dwelling. Overall the site has met the criteria threshold for Historical Significance, Aesthetic Significance, Rare Significance, and Representative Significance at the local level." (Exhibit A)

Relevant Planning Controls

1. The subject site is located within the R1 General Residential zone under the LEP 2012. The proposed use of the site for three attached is permissible with consent in the zone.
2. The development is compliant with the relevant height and floor space ratio development standards in LEP 2012.
3. In addition to listings in the SHR, the site is mapped within the Hereford and Forrest Lodge Heritage conservation area under LEP 2012 and cl 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at subcl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views, to conserve archaeological sites and aboriginal objects and places of significance.
4. The consent authority must, before granting consent in respect of a heritage item must consider the effect of the proposed development on the heritage significance of the item, at subcl (4).
5. LEP 2012 contains the following relevant definitions: curtilage, in relation to a heritage item or conservation area, means the area of land (including land covered by water) surrounding a heritage item, a heritage conservation area, or building, work or place within a heritage conservation area, that contributes to its heritage significance. heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.
6. Clause 6.21 of LEP 2012 applies to the development. The objective of the clause is 'to deliver the highest standard of architectural, urban and landscape design'. At subcl (3) the consent authority is required to be satisfied that 'in the opinion of the consent authority, the proposed development exhibits design excellence' in order to have the power to grant consent to development. In forming an opinion the consent authority is required to have regard to the following factors (cl 6.21(4)): (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
7. DCP 2012 applies to the site. At 2.6.8 the plan provides a statement and principles for the locality: Forrest Lodge. Relevantly principle (b) states: Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes, and principle (e): Ensure future development responds to the predominant terrace typology and protect distinctive groups of detached and terrace houses.
8. At 3.5.2: Urban Vegetation, DCP 2012 includes the following objective: Ensure that tree canopy cover is considered in all development and provided appropriately in each development. The relevant provision is (2) which states: Provide at least 15% canopy coverage of a site within 10 years from the completion of the development.
9. Further at 3.5.3: Tree Management DCP 2012 have two relevant objectives: (b) seeks to: Ensure the protection of trees within and adjacent to development sites; and (c) seeks to: Maximise the quality and quantity of healthy tree canopy coverage across the LGA.
10. Part 3.9.5: Heritage Items includes the objective to: Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item. Part 3.9.5 also provides the following controls relevant to the proceedings: "(1) Development affecting a heritage item is to: (a) minimise the extent of change to significant fabric, elements or spaces; … (c) enable the interpretation of each of the significant values of the item through the treatment of the item's fabric, spaces and setting; … (f) not reduce or obscure the heritage significance of the item; and (g) be reversible where necessary so new work can be removed with minimal damage, or impact to the significant building fabric. (h) be consistent with an appropriate Heritage Conservation Management Plan, Conservation Management Strategy or policy guidelines contained in the Heritage Inventory Assessment Report for the item. (i) ensure that any changes to the original/significant room configuration is evident and can be interpreted; and (j) respect the pattern, style, dimensions or original doors and windows … (3) Alterations and additions to buildings and structures and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the: (a) building envelope; (b) proportions; (c) materials, colours and finishes; and (d) building and street alignment. (4) Development in the vicinity of a heritage item is to minimise the impact on the setting of the item by: (a) providing an adequate area around the building to allow interpretation of the heritage item; (b) retaining original or significant landscaping (including plantings with direct links or association with the heritage item); (c) protecting, where possible and allowing the interpretation of archaeological features; and (d) retaining and respecting significant views to and from the heritage item."
11. The Building Setback provisions are provided at 4.1.2. The relevant provisions are: "… (2) Within heritage conservation areas, new development is to relate to the established development pattern including the subdivision pattern, front, side and rear setbacks. (3) A greater front, side or rear setback may be required for development within the vicinity of a heritage item in order to maintain the visual setting of the heritage item. This is to be determined on a site by site basis. …"

Expert Evidence

1. In response to the Council's contentions in relation to Tree Management the parties engaged experts who participated in a joint conference. The Council relies on the evidence of Mr Michael Sullings and the Applicant Mr Andrew Langford. Their joint report is tendered as Exhibit 2. These experts were not called for oral evidence or cross-examination.
2. Further, the applicant relied on the expert evidence of Mr Stephen Davies (heritage), Mr Anthony Betros (planning). The Council relied on the expert evidence of Mr John Poulton (heritage), Ms Julia Pressick (planning) and Ms Maria O'Donnell (urban design).

Does the proposed development satisfy cl 6.21: Design Excellence, and exhibit design excellence?

1. The Council contends that the proposed application is inconsistent with objective (1) of cl 6.21, namely: to deliver the highest standard of architectural, urban and landscape design.
2. In relation to the matters of consideration the Council argues the development fails to:

• adequately address the heritage issues and streetscape constraints contrary to cl 6.21(4)(d)(iii);
• achieve a high standard of architectural design, materials and detailing appropriate to the building type and location (cl 6.21(4)(a));
• adequately address the bulk, massing and modulation of buildings contrary to cl 6.21(4)(d)(v);
• address the environmental impacts of the development including visual privacy contrary to cl 6.21(4)(d)(vii);
• achieve excellence and integration of landscape design contrary to cl 6.21(4)(d)(xiii).

Heritage:

1. The heritage experts are agreed on the works proposed to the heritage item itself. Mr Poulton raises no objection to the works proposed in the Schedule of Conservation works proposed by the Applicant.
2. The primary areas of dispute in Mr Poulton's and Mr Davies' evidence are: 1. whether the two proposed two-storey dwellings and the associated works have an unreasonable impact on the setting and curtilage of the heritage item; 2. whether the form, scale and building envelope of the two proposed two-storey dwellings impact detrimentally on the significance of the heritage item; and 3. whether views to the heritage item from the public domain will be obscured by the proposed development.
3. Mr Poulson argues the proposed development will adversely impact on the character and significance of the heritage item in the following ways: "- The substantial reduction in the curtilage of the villa which is inadequate to protect its significance. Approximately 40 per cent of the site, to the rear of the villa, will be taken up by the new building which will effectively make the villa appear as 'landlocked' and encapsulated by development. - The inadequate separation between the villa and the courtyard walls/fences and rear elevation of the new building. - The poor scale relationship between the villa and the new building as a result of the setbacks and heights proposed, which result in a development which is not subservient to the villa. - The small side setback (1.19m) from the eastern boundary which will result in a narrow pathway to the villa from Alfred Road, which lined with walls/fences will create a second compromised access to the villa. - the small setbacks from Alfred Road (between 1m and 1.4m) will be considerably less than, and not relate to the adjoining neighbours. - the existing glimpses of the villa from Alfred Road being obscured by the new building will also result in the loss of the sense of spaciousness around the villa. - The accumulative adverse effect it will have on the significance of the site will add to that caused by the previous subdivision and development of three terraces in the front garden." (Exhibit 3)
4. Mr Poulson concludes that the proposed development 'in terms of the location, height and setbacks of the rear building is considered to have an adverse impact on the significance of the villa, reduce its curtilage and result in development not appropriate for the heritage listed site. It, therefore, cannot be considered to exhibit design excellence.' (Exhibit 3)
5. As well as participating in the joint conference, Mr Davies prepared the HIS and the Schedule of Conservation Works that support the proposed development. The Schedule of Conservation Works proposed for the heritage item includes items of repair, remedial and preventative works, as well as the reinstatement of original features. Further, it provides details of the tradespeople, preferred materials, and methodology. This schedule is accepted by the Council.
6. At 4.2 of the HIS, Mr Davies completed an assessment of the heritage item by against the seven criteria in: 'Assessing Heritage Significance' produced by the Office of Environment and Heritage in 2015. This assessment concludes that the item has Historical, Aesthetic, Representative and Rarity significance at a local level. Mr Davies' assessment under each of these criteria is extracted below: 1. Historical Significance: "The existing dwelling was constructed in c. 1877 in the still-developing Glebe and Forest Lodge areas, It provides a snapshot of the architectural style and the original subdivision layout, consisting of large blocks fronting Hereford Road. Due to the age of the building, its relative intactness, association with the early development of Forest Lodge and the length of time in government ownership, the dwelling has Historical Significance." 1. Aesthetic Significance: "The existing building is a generous and handsome one storey example of a Victorian Regency dwelling. The stone construction is rare in the area and is particularly attractive. However, the development which has occurred relatively close to the original frontage of the dwelling has substantially reduced the aesthetic significance of the dwelling and its setting. Adding to this, the dwelling has had a number of modifications, both internally and externally (for example the contemporary front verandah and rear lean-to), that has reduced its aesthetic qualities. Notwithstanding these modifications and development, the dwelling does possess an aesthetic quality which is at the level required for local heritage significance." 1. Representative: "The subject site is representative of the Victorian Regency style, within the scope of a large one storey homestead. While the site has been modified internally, externally it remains relatively intact (apart from contemporary verandah additions front and rear). Internal modifications include later Victorian and Federation era 'modernisations' while providing heavier detailing, have retained the overall layout of the dwelling. Given this, the dwelling does have Representative Value at the local level." 1. Rarity: "The existing dwelling is a rare example of a large one-storey Victorian Regency dwelling within the local area and wider Sydney LGA. While this has been substantially compromised with the development facing Hereford Street, the dwelling remains a rare example of its type and meets the threshold for rarity at a local level." (Exhibit A)
7. In the joint report Mr Davies summarises his assessment of the proposed development from a heritage perspective as follows: "-… The current situation provides for a dwelling in poor condition and an altered or truncated rear elevation. The dwelling is one which if developed further would attract an addition to the rear having regard to its size and location. A two-storey addition or a garage with a loft on the rear boundary of the site to Alfred Street frontage is not an unexpected outcome in this situation. The proposal for two two-storey townhouses is a complementary proposal having regard to the proposed setbacks and associated landscaping and the opportunity to conserve the dwelling. - The dwelling is setback from the rear setback of the planter by 4.0m and then a terrace, so a 7m setback to the main wall of the proposal from the rear elevation of the dwelling. The proposed landscaping will enhance the setting of the dwelling. The siting of the townhouses provides for a setback from the northern boundary to allow for a side verandah and access to a deeper landscaped space to the rear of the dwelling. - The dwelling is currently obscured from Alfred Road due to the high privacy fence. The rear elevation of the dwelling is a blank façade. The situation provides for additional development to the dwelling in some form which would likely obscure any views from the rear if the fence were removed. A dwelling of this type is unlikely to have any meaningful views of the rear elevation from a back street and this is not a requirement for dwelling houses. - The proposed townhouses are of high-quality being of simple contemporary design. The proposed dwellings step back from [the] cottage and are of two stories in relation to the rear of the existing dwelling. The distance between the proposed townhouses and the existing dwelling provides for both deep soil planting and a planter box. Through discussion with Council, the proposed dwellings have been reduced in number and depth. The materials are simple, being stone, timber and render and will have a neutral design relationship to the existing dwelling." (Exhibit 3)
8. Mr Davies concludes that on balance the proposed development has a neutral to beneficial impact on the heritage significance of the item given the conservation works. He concludes that the new two storey dwellings are of an appropriate setback to provide a sufficient setting for the heritage item and are of a form and materiality that will not detract from it. In his oral evidence, he argues that the increased setback to the north eastern boundary will allow improved views to the heritage item from Alfred Road that what is currently available.
9. The final area of disagreement between Mr Davis and Mr Poulson is in regards to the accordance of the proposed development with the recommended management on the SHR listing, refer paragraph [22]. Both experts agree that the proposed development: "1. Conserves the building. 2. Has a Conservation Schedule and a Heritage Impact Statement. 3. There are no vertical additions. 4. The principal room layout and significant planning configuration are retained. 5. The additions to the site are confined to the rear."
10. However, Mr Poulson strongly argues that the proposed development is inconsistent with the recommended management measure that 'there should be no further changes to the site that adversely impact on the setting, curtilage, and significance of the villa.' It is Mr Poulson's conclusion that as proposed the development will have an adverse impact on the significance of the villa, reduce its curtilage and on these grounds the development application warrants refusal.
11. In the alternative, Mr Davies concludes that as proposed the development is a well resolved and simple insertion of two two-storey dwellings that are detached from the heritage item. He concludes that when considered in the context of the conservation works the development will not detrimentally impact on the heritage significance of the villa.

Submissions

1. Ms Duggan SC emphasises that the issue for the Court to determine, pursuant to cl 5.10(4) of LEP 2012, is whether the change effected by the application detrimentally impacts the heritage significance of the item to an extent that is unacceptable and therefore warrants the refusal of the application. In her submissions, she emphasises the statement of significance of the item in the Heritage Inventory Sheet (refer paragraph [21]) is the focus of the assessment.
2. Further, Ms Duggan argues that the recommended management options, including the reference to "no further changes to the site that adversely impact on the setting, curtilage, and significance of the villa" should be read in the context that the statement of significance makes no reference to the curtilage of the item.
3. Ms Duggan submits that the Court is required, in forming a conclusion of the impact of the proposed works on the significance of the heritage item, to give weight to the positive effects on the items significance that arises from the development. In particular, Ms Duggan notes the experts are agreed that: the conservation works to the villa itself; the reinstatement of the garden setting and the enhanced ability to view the item from Alfred Road, are positive outcomes that will result from the approval of the development.
4. In contrast to Ms Duggan's focus on the statement of significance in the assessment of impact, Ms Pearman argues that the Heritage Inventory Sheet should be read as a whole. She places emphasis on the non-conformance of the development with the recommended management options, in particular: that 'there should be no further changes within or adjoining the site that adversely impacts on the setting, curtilage and significance of the item'.
5. Further, Ms Pearman submits that a detrimental impact on the setting and curtilage is inconsistent with the objectives of cl 5.10 of LEP 2012 which include conserving the heritage significance of heritage items including the items setting.
6. On the evidence of Mr Poulson, Ms Pearman submits that the proposed development warrants refusal on grounds of its detrimental impacts on the significance of the villa. She highlights Mr Poulson's reasoning as detailed at paragraph [41].

Findings

1. Simply put cl 5.10(4) of LEP 2012 asks the consent authority to consider the impact of the proposed works on the significance of the heritage item. The acceptability of the heritage impact, in totality, is then assessed under cl 6.21 of LEP 2012 and ultimately through merit assessment under s 4.15(1)(b) of EPA Act, along with the remaining matters of consideration under that clause, to determine whether the development warrants approval.
2. I am not persuaded by the submission of Ms Duggan that the focus of my assessment is reliant only on the statement of significance. Consistent with the decision of Commissioner O'Neill in Woods v Ku-ring-gai Council [2019] NSWLEC 1122 at [28] I accept the Council's submission that the Heritage Inventory Sheet is to be read as a whole and the Statement of Significance is a summary of heritage significance. I do not accept the applicant's submission that the assessment of significance is constrained by reference only to the Statement of Significance.
3. In making an assessment of the application I have also given weight to the assessment of significance undertaken by Mr Davies in the HIS, reproduced at paragraph [44].
4. On the basis of the evidence of the experts, I am persuaded that the development will have a positive impact on the significance of the villa in the following ways: the agreed conservation works to be undertaken; the reinstatement of the garden setting and the enhanced ability to view the item from Alfred Road. I accept the evidence of Mr Davies that the view to the heritage item from Alfred Road will be improved by the proposed development, subject to the proposed conditions in relation to planting heights and the openness of the palisade fence.
5. However, following a review of the architectural plans, I prefer the evidence of Mr Poulson that the new building works will detrimentally impact on the heritage significance of the villa. I am satisfied this impact arises from the proximity of the two proposed dwellings to the villa itself, the height difference between the two structures. The proximity and scale of the proposed development to the villa is perceptible in the following extract from the architectural plans (extracted from the joint planning report): (Exhibit 4)
6. I accept Mr Poulson's evidence that the form, scale and building envelope of the two proposed two-storey dwellings detrimentally impact on the significance of the heritage item. I find that the proposed development results in an erosion of the setting for the heritage item.
7. In undertaking an assessment under cl 5.10(4) I am required to balance both the positive and detrimental impacts that will result from the development. In doing this I find that the proposed development will have a detrimental impact on the heritage significance of the villa, predominately arising from the impacts to its setting. However, I am not persuaded that this impact is of such a magnitude that, on its own, warrants the refusal of the application.

Planning and Urban Design:

1. Following the joint conferencing process, the planning and urban design experts have the following principal areas of dispute in regards to the amended plans: 1. Whether the proposed separation between the heritage item and the bulk and scale of the proposed two-storey dwellings are appropriate and responsive to the site conditions. 2. Whether the proposed setback of the new two storey dwellings to Alfred Road is appropriate in the streetscape context of the site. 3. Whether the proposed development exhibits design excellence.
2. Mr Betros argues that the siting of and built form of the proposed development is a suitable response to the site condition and context for the following reasons: "a. The 2-3 storey scale will be compatible with the 2-3 storey scale townhouses to the north-east, terraces to the north-west and 3-storey residential flat building to the south-west. b. The siting of the proposed 2-3 storey built form is acceptable on a merit basis given the varied character of building types and alignments along both sides of Alfred Road. The visual analysis above confirms that there would be no unreasonable visual bulk impacts as viewed from any of the surrounding properties. c. The above analysis also demonstrated that the proposed height and separation of the item is acceptable on the basis that there are limited vantage points to observe the proposed terraces and the heritage item in the same context. The proposed 7m separation allows for a suitable curtilage around the heritage item whilst allowing for landscaping around its perimeter. d. The proposed development is not responsible for any adverse or unreasonable view, shadow or privacy impacts." (Exhibit 4)
3. Further, Mr Betros argues that 'the proposal strikes an appropriate balance between redeveloping the unutilised section of the site (currently used for car parking) and providing for 2 high-quality dwellings' (Exhibit 4). Mr Betros argues that the compliance of the development with the floor space ratio control demonstrates that the development is consistent with the form of development envisaged by the planning controls.
4. In response to the Council's concerns about the setback of the proposed development to Alfred Road Mr Betros argues that 'the small scale of the development i.e being only two dwellings, and the substantial distance of separation to surrounding properties, ensures that [the] siting and scale of development is acceptable in its context' (Exhibit 4). Further, he notes that an assessment of aerial photography and an analysis of the existing built form of Alfred Road demonstrate the varied nature of built form, era and dwelling type in proximity to the site. Mr Betros disagrees with Ms Pressick that the adoption of a terrace style form necessarily requires a setback treatment similar to the adjoining property to the northeast.
5. Mr Betros argues the setback of the proposed development to Alfred Road is appropriate in his assessment as follows: "The front setback is an appropriate and reasonable design response as it provides a suitable separation distance to the heritage item, whilst also providing for a built form which will sit comfortably in this varied context. The proposed setback is acceptable for what I consider to be an unutilised portion of the site. The 2-storey scale of development as it presents to Alfred Road with a 1.5m setback is not uncharacteristic of numerous terraces which exist in the locality. Given the varied nature of the streetscape, I therefore consider the proposed setback to be a reasonable response." (Exhibit 4)
6. Mr Betros concludes his assessment of the merits of the proposal by stating that in his view:

• the planning controls (zone, height and FSR) contemplate development and change for the site;
• the terraces provide a positive streetscape and amenity outcome;
• the development maintains the amenity of the surrounding properties;
• the proposal facilitates the improvement of the condition of the heritage item, whilst 'reasonably maintaining the setting of the item';
• provides for abundant new landscaping; and
• the proposed development satisfies the relevant objectives and criteria of the Design Excellence provisions.

1. On this basis, Mr Betros argues the application warrants approval.
2. Ms Pressick and Ms O'Donnell argue that in assessing streetscape and the appropriateness of the proposed setback, regard should be had to objective (a) of s 4.1.2 of DCP 2012 which seeks to 'Ensure that new development relates to the existing setback patterns'.
3. Relevantly provision (1) of s 4.1.2 of DCP 2012 states: Where no front setback is shown on the map, the front setback is to be consistent with the predominant setting in the street. Further provision (3) states: A greater front, side or rear setback may be required for development within the vicinity of a heritage item in order to maintain the visual setting of the heritage item. This is to be determined on a site by site basis.
4. Ms Pressick argues that the proposed development is inconsistent with these provisions, and fails to meet the objectives of the setback controls. Her reasoning is as follows:

• To determine if the proposed design is of a high standard and suitable to the building type and location - it is necessary to understand the characteristics of the locality.
• on the basis of her analysis those characteristics are delineated by the various building types (Ms Pressic refers to these as 'typologies') in the locality of Alfred Road: - Small Cottage typology - Rear fence/ garage typology - Terrace typology
• She argues that the setback condition relevant to the analysis required by the DCP, namely: to be consistent with the predominant setting in the street; is undertaken on the basis of the building type.
• Her analysis concludes that: 'The proposed development adopts a terrace house typology in keeping with the neighbouring development at 69 Hereford Street, but fails to related to the established development pattern of approximately 12m front setbacks, created by the adjoining terrace houses. Instead, a 0.9-1.4m setback is introduced on the subject site.'
• The location of the proposed built form in the 'setback zone' creates a detrimental impact on the streetscape.
• The siting of proposed development within the site results in a building that appears inappropriately bulky and out of scale, notwithstanding its compliance with the height and storey controls.
• The proposed setback provides inadequate space to create new landscaping that will replace that which is already established.

1. Further, Ms Pressick argues that the treatment of the setback provided by the development is unsatisfactory. It is her view that the high solid walls and fences along the boundary with Alfred Road, and the lack of landscaping, are uncharacteristic and detrimental to the streetscape.
2. I note that the Macquarie dictionary defines 'Typology' as: "1. the doctrine or study of types or symbols, especially those of Scripture. 2. the study of types and classes, especially as in systematic classification. 3. Archaeology the study of the shape of artefacts for purposes of classification and comparison. 4. an analysis of a diverse range of objects or phenomena into distinct classes or types"
3. Ms Pressick concludes that the development fails to meet the requirements of cl 6.21(3) to exhibit design excellence on the basis of the matters for consideration at cl 6.21(4)(a), 6.21(4)(d)(iii), and cl 6.21(4)(d)(v).
4. Relevant to whether the proposed setback is appropriate in the streetscape context, the tree management experts disagree as to the appropriateness of the proposed plantings in the front setback. The applicant proposes the planting of a Plumeria Rubra adjacent each of the pedestrian gates to the proposed dwellings (Exhibit A). Mr Sullings argues that the proposed setback would 'severely restrict the development of any substantial canopy' (Exhibit 2).
5. Relevantly Mr Michael Sullings and Mr Andrew Langford agree as follows: "- It is agreed that the proposed new trees shown on the architectural plans are misrepresentative of the size and canopy coverage the proposed tree species are likely to realise upon maturity. - It is agreed that Plumeria Rubra (Frangipani) is a slow-growing species. - It is agreed that proposed new Plumeria Rubra (Frangipani) trees are unlikely to grow beyond a maximum height of 5m. - It is agreed that the proposed new Frangipani trees would be very unlikely to ever achieve either the height or canopy density shown on the drawings." (Exhibit 2)

Submissions

1. Ms Duggan submits that the appropriate approach to an assessment of the 'existing setback pattern' under s 4.1.2 of DCP 2012 is to consider the totality of the development in Alfred Road. She submits it is not part of the provisions of the DCP to group the assessment by typology. Further she submits that, on the evidence of Mr Betros the diversity of the setback and subdivision pattern in Alfred Road provides a capacity for the streetscape to 'absorb' the proposed minimal setback without being incompatible.
2. Further Ms Duggan argues that if the setback is in itself acceptable, any loss of amenity generated by the removal of the existing trees on the boundary with Alfred Road will be offset by the replacement planting.
3. Finally in relation to the consideration of the design excellence provisions in cl 6.21 of LEP 2012 she submits:

• There is no evidence before the Court to support a conclusion that the development fails to achieve a high standard of architectural design appropriate to the site and its location as required by subcl (4)(a);
• that the Court should accept the evidence of Mr Betros that the setback proposed is appropriate, and the landscaping and the improved view of the villa from Alfred Road achieve and improvement in the quality and amenity of the public domain;
• in relation to the matters listed under subcl (d) Mr Davies and Mr Betros' evidence demonstrates that these matters for consideration are addressed. In particular it is the agreed evidence of Mr Davies and Mr Poulson that (d)(xiii) is met by the proposed landscaping.

1. Ms Pearman submits that the applicants approach to the subject site is erroneous as they have commenced from a position of categorising the rear yard as 'underutilised space'. Ms Pearman argues that this approach ignores the role of this portion of the land as the setting and curtilage of the villa and necessary for the retention of the large existing trees fronting Alfred Road. She submits that the Court should give weight to the agreed evidence of the experts that the replacement planting proposed by the applicant in the frontage to Alfred Road will not replace the lost amenity when the existing trees are removed.
2. Further Ms Pearman argues that the approach taken to determine the appropriate setbacks from Alfred Road and the villa are also affected by seeing the rear portion of the site as 'underutilised'. She submits that the separation between the villa and the new dwellings is the amount remaining once the development is placed on the site, rather than being driven by a determination of the necessary area to maintain the villa's significance.
3. In contrast to Ms Duggan's view Ms Pearman argues that the approach taken by Ms Pressick to analysing the 'predominant setting in the street' is appropriate and should be accepted by the Court. Further Ms Pearman relies on a decision of Commissioner Tuor in Berrafall Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1059 which relates to the redevelopment of 61 - 63 Hereford Street. She submits that in this judgment Commissioner Tuor, at [35] and [36], made findings that reflect the importance of maintaining the Building Location Zone control in Part B1.2 of then Leichhardt Development Control Plan 2000.
4. Finally Ms Pearman argues that on the basis of the Council's experts the Court would not be able to reach a state of positive satisfaction of the matters under cl 6.21 of LEP 2012. On this basis she submits that the development application ought to be refused.

Findings

1. I accept the submission of Ms Duggan that the matters for consideration at cl 6.21(4) of LEP 2012 are cumulative matters which, when considered together, determine whether the proposed development, as a whole, exhibits design excellence.
2. Relevantly in MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211, Commissioner Dixon at [85] states that: "Clause 6.21 (3) is a precondition to consent. It requires the Court to form an opinion, before granting development consent, as to whether 'the proposed development exhibits design excellence'. This phrase is not defined and is to be differentiated from the phrase 'building demonstrating design excellence' that is defined in subclause (9). In considering whether the proposed development exhibits design excellence the clause requires a consideration of the matters in subclause (4) in order to achieve the objective of the clause being delivery of 'the highest standard of architectural, urban and landscape design'."
3. I accept that 'building type' or 'typology' is a relevant approach to the assessment of the architectural design, materials and detailing of the proposed development (cl 6.21(4)(a)). However in considering whether the proposed development is compliant with s 4.1.2(2) of DCP 2012 new development is only required to relate to the established development pattern including the subdivision pattern, front, side and rear setbacks.
4. I accept the evidence of Mr Betros that the established development pattern is varied in the nature of built form, era and dwelling type in proximity to the site. I am not persuaded that in an assessment of the established development pattern (s 4.1.2(2) of DCP 2012) further weight should be accorded to the setback pattern based on building type.
5. However, whether the front setback is an appropriate and reasonable design response to the site is a matter of consideration in the context of cl 6.21. At subcl (4)(b) the consent authority is to have regard to whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain.
6. I am not persuaded by the evidence of Mr Betros that the terraces provide a positive streetscape and amenity outcome. With the benefit of a site view, I accept the evidence of Ms Pressick that the siting of proposed development within the subject site results in a building that appears inappropriately bulky and out of scale, notwithstanding its compliance with the height and storey controls. The lack of sufficient setback to Alfred Road places the building bulk too close to the public domain and the lack of space and planting provides no amelioration of its scale.
7. I accept the evidence of Mr Michael Sullings and Mr Andrew Langford that the proposed setback provides inadequate space to create new landscaping that will be of a scale or canopy density detailed in the architectural plans.
8. I am satisfied that the presentation of the proposed development to Alfred Road is constrained by the limited setback. I am persuaded by the evidence that a 0.9-1.4m setback in this locality does not provide sufficient space to achieve an appropriate interface with the street and offset the proximity of the building mass to the street alignment.
9. Further, the location of the bins within the street setback, behind a steel flat plate gate is inconsistent with improving the amenity of the public domain.
10. I find that the streetscape and urban design impacts, along with the impact on the heritage significance of the item, cumulatively result in a finding that the development does not exhibit design excellence.
11. In conclusion, I find that the proposed development does not: adequately address the heritage issues and streetscape constraints of the site, contrary to cl 6.21(4)(d)(iii); achieve a high standard of architectural design appropriate to the site and its location (cl 6.21(4)(a)) nor have an external appearance that will improve the quality and amenity of the public domain (cl 6.21(4)(b)).
12. In that circumstance, I am precluded by cl 6.21(3) of the LEP 2012 from granting development consent in this case as I find that the development does not exhibit design excellence.

Orders

1. The Court orders that: 1. The Applicant is granted leave to rely on amended plans; 2. Development Application No. D/2017/1602 for the construction of two, two-storey dwellings with attic and roof terrace, basement parking, alterations and additions to the existing heritage item, and site works including the removal of seven trees and installation of new landscaping at 75 Hereford Street, Forest Lodge is refused. 3. The exhibits are returned with the exception of Exhibits A and 7.

Commissioner of the Court 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: 17 April 2019