Bates Smart Pty Ltd v Council of the City of Sydney

Relevant planning controls 11The site is within Zone R1 General Residential under Sydney Local Environmental Plan 2012 (LEP 2012). Residential flat buildings and Shops are permissible with consent, however Commercial premises are prohibited. 12The Zone R1 objectives are: · To provide for the housing needs of the community. · To provide for a variety of housing types and densities. · To enable other land uses that provide facilities or services to meet the day-to-day needs of residents. · To maintain the existing land use pattern of predominantly residential uses. 13Clause 2.3(a) provides that: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 14Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The maximum height shown on the Height of Buildings Map is 15m. As part of the proposal exceeds 15m, a written request was provided that seeks to justify the contravention of the development standard in accordance with cl 4.6(3). 15The building is identified in Sc 5 as a heritage item of Local significance (Item 1357). It is described in Sch 5 as "First Church of Christ Scientist including interior" and as such cl 5.10 Heritage conservation applies. Clause 5.10(4) states: (4) Effect of proposed development on heritage significanceThe consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 16Clause 5.10(10) provides heritage incentives and is relied upon by the applicant for those uses prohibited in the R1 zone. It states: (10) Conservation incentivesThe consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. 17The site is also located in the Oxford Street and Victoria Street Heritage Conservation Area (the Conservation Area) in Sch 5 where it is identified as being "contributory". 18Sydney Development Control Plan 2012 (DCP 2012) applies to the site. 19State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposal. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)).

Height 20There was agreement on the extent of the breach of the 15m maximum height requirement. The applicant helpfully showed the breach on perspective drawings that indicated that the roof of the living room, the dining room, part of the kitchen and part of the pergola structure outside these rooms of Apartment 4 exceed the 15m maximum height. Parts of the existing parapet and roof structure of the existing building also breach the 15m standard. 21The proposal is essentially in two parts. The eastern portion, which is predominantly above the foyer and associated service rooms is compliant with the 15m height standard. The western portion (part of Apartment 4) around the northern and southern side of the existing roof is at RL64.13 and matches the ridge of the existing building. This element has a maximum height of 17.2m. 22The relevant objectives for the height development standard, in cl 4.3, are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views,

The written request 23Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and 24Mr Darroch, the applicant's town planner, provided a written request pursuant to cl 4.6(3). The written request states that a variation to the height standard can be supported because the bulk and scale of the proposal is consistent with the character of surrounding development, the proposal is consistent with the desired future character of the area, has no environmental effect of any significance, and provides good amenity to the apartment in question. The written request also states that in order to achieve compliance with the height standard, an area of the internal ceiling of the auditorium would require modification. On balance, this is not considered to be an appropriate approach because of the heritage value of the internal ceiling of the auditorium. 25In reference to the height objectives required by cl 4.6(4)(ii), the written request states that the proposal minimises any overshadowing, loss of privacy and visual impacts for the neighbouring properties. The proposal does not create any adverse view impacts and promotes view sharing by retaining the established ridge height of the building. A consideration of the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 indicate that the view loss impact is for the most minimal and at worst moderate in those areas where the proposed addition complies with the height and FSR controls. The bulk and scale of the proposal is considered to be consistent with the desired character of the locality and provides an appropriate transition in height between the new development and the heritage item. It is considered that the height standard objectives are met by the proposal. 26In relation to the zone objectives, the written request states that the proposed development improves the provision of housing for the community by improving the amenity of the offering and increasing the vitality of the area. The proposal increases the variety of housing types and increases the concentration of housing to take advantage of its access to transport, services and facilities. It is noted that while the proposal improves density it remains well below the permissible floor space ratio (FSR) for the site. It is considered that the zone objectives are met by the proposal. 27The written request states that compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify contravening the development standard as the height breach arises from the fall on the site and the fact that the existing building is in excess of the height control. The proposal has been kept to this ridge height to avoid penetrating the roof cavity of the auditorium and compromising the heritage significance of that fabric. The proposal has been designed to space the area between the parapet and the truss to minimise the heritage impact while remaining below the ridgeline to minimise the view impacts. While it would be possible to lower the upper level into the roof cavity of the auditorium and achieve compliance it is considered that on balance it is more appropriate to seek an exemption under cl 4.6 where the breach is localised and masked by the ridge of the existing building.

The evidence 28The conclusions of the written request are supported by Mr Rohan Dickson, the applicant's expert architect and urban designer who maintains that the height is appropriate. He states that the majority of the building is below the 15m standard and where the building exceeds the 15m standard, there are no adjoining buildings. In his opinion, the proposal also reflects the desired future character of the area. 29Mr Graham Brooks, an architect and heritage consultant also provided evidence for the applicant. He states that the proposed additions are sympathetic to the form and scale of the building and to the fundamental Beaux Arts composition. The proposal has adopted a best practice conservation approach by confining the majority of the new accommodation above the lesser and more recessive foyer component of the overall architectural composition. 30The proposal currently before the Court, as amended, has deleted the southern roof level apartment originally proposed for the southern side of the auditorium on the grounds that it may have been partly visible above the major architectural presentation of the Liverpool Street and Forbes Street elevations when viewed from the primary public vantage point at the intersection. The northern roof level apartment has been amended to reduce its height and set back further from the external wall lines of both the northern and western elevations. A new section of infill parapet, at a matching height to the existing parapet, has been introduced along the central section of the northern elevation to successfully screen the great majority of this apartment from views further north in Forbes Street. As a result, the roof level apartment is not readily visible above the main architectural massing of the auditorium. When it can be perceived from further north in Forbes Street, it is above the secondary northern or side elevation, which was treated with more restraint than the primary Forbes Street and Liverpool Street elevations. 31Ms Gabrielle Morrish, the councils expert architect and urban designer, maintains that any extensions or alterations to the building should be recessive and not attempt to dominate the heritage building, in terms of height. This calls for a sensitive response that should have lesser massing and height than the existing building and its ridgeline so that the appreciation of the ridgeline is not lost. The allowable height under LEP 2012 is 15m however the achievement of this height is not a given; it is a starting point against which the character and significance of the heritage item, the streetscape and the amenity of adjoining development needs to be balanced. 32In her assessment of the planning controls, the 15m height requirement for this site is specific and applies generally to only the site and another site to the north east. Other sites and heritage items around the site have different heights. For instance, to the immediate north, the height standard increases to 30m whereas it is lower on the other side of Forbes Street. Such specific height standards suggest careful strategic consideration of the height of the existing heritage buildings and the intent to keep the height less than or the same as the current building form. The existing ridgeline on the heritage former church is above 15m so the inference could be made that any redevelopment should be lower than the maximum existing height of the church. 33The application proposes a two storey extension over the foyer entry and a single storey extension partially intruding into the roof form of the auditorium to the north. The two- storey foyer extension is within the maximum height standard and is located facing Liverpool Street. Given this is the least developed part of the site, it is probably the most appropriate location for an addition, subject to issues of boundary proximity. 34The northern roof addition sits above the dominant form of the former church and intrudes into the roof space. It exceeds the height control by between 1.5m and 5.5m, based on information provided by the applicant. It is 'perched' up on the roof along with the proposed terraces and does not sit comfortably with the existing form of the church or the roof. Its location does not relate to the existing load bearing structure or its elements, instead it straddles the side bays of the church and extends over the main body of the auditorium. Its juxtaposition is awkward, above the height plane and does not respond to the existing structure and layout. 35The new parapet increases the bulk of the northern facade of the building purely to hide an extension that is above the 15m height standard. If the proposal were compliant with the height standard then the parapet would not be required as the addition would be much further back relative to the Forbes Street streetscape. Given the heritage values of this building, its location within a conservation area and in proximity to so many other heritage items, it is not considered reasonable to exceed the height standard and to do so in a way that is able to be perceived from the public domain. 36Overall. the northern addition locates new building form in a way that is not responsive to the design of the original building, interrupts the silhouette of the building and changes the silhouette where it is visible to the public domain in a way that reduces the significance of the heritage item. 37Ms Jennifer Hill, an architect and heritage consultant, also provided evidence for the council. She agrees with the comments of Ms Morrish and states that the breach of the height standard impacts on the heritage significance of the building. In her opinion, the reliance on the ridge height as the appropriate reference point for height is not appropriate as the building height is defined by the parapet. 38From a heritage perspective, Ms Hill opposes the extension of the existing parapet along the western facade of the building. In her opinion, and if the parapet was to be raised to the level proposed, the design should not mimic the existing parapet of the southern and eastern facades of the building but consist of a more contemporary design to distinguish the new parapet from the existing heritage parapet. As I understand her evidence, she did not oppose alterations to the building above the existing foyer although her evidence did not address the amenity impacts associated with the form proposed in this application although these impacts were addressed by Ms Morrish who raised considerable concern and which are addressed later in the judgment.

The assessment framework 39Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 40In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 41A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

The zone objectives 42The objectives of the R1 zone are: · To provide for the housing needs of the community. · To provide for a variety of housing types and densities. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To maintain the existing land use pattern of predominantly residential uses. 43I accept that it can be reasonably argued that the proposal is consistent with providing "for the housing needs of the community" (dot point one) and providing "for a variety of housing types and densities (dot point two). The provision of commercial offices, artists' in residences studios and associated exhibition space could be said to be inconsistent with the objective in dot point three however these uses fall within the scope of the heritage incentive provisions in cl 5.10(10) and were not raised as contentions by the council. I also accept that it can be reasonably argued that the proposal is consistent with maintaining "the existing land use pattern of predominantly residential uses" in dot point four given that the proposal provides for the residential use of part of the site and which complements the existing approved residential use of the auditorium area. 44Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

The height standard objectives 45The relevant objectives of the height standard are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, 46As the hearing proceeded, it became clear that any consideration of the breach of the height standard must involve a consideration of the impact on the heritage significance of the building as both matters are inextricably linked. 47The intent of objective (a) is not particularly clear. The words "condition of the site" or the word "site" are not identified in the Dictionary to LEP 2012 and the written request does not provide any guidance as the height objectives are addressed collectively. Consequently, I have given the words "condition of the site", a broad meaning that includes the physical characteristics of the land that would include slope, any changes to the natural topography, natural features and the like as well as the improvements on the land, including any special features such as the heritage significance of the building, in this case. I have taken "context" to be principally the visual catchment from the site. 48If considered on this basis, I agree with the conclusions of Ms Morrish and Ms Hill. All experts agreed that the part of the proposal that breaches the height standard would be visible when looking south to the site from Forbes Street. The breach will also be visible from the residential flat building at 200 Forbes Street over the adjoining block that is used as a car park for this building. While there was some disagreement over the extent of the breach from the photomontages prepared by the applicant, the disagreement was relatively small. 49What was also not disputed was that a greater amount of the proposed building above the height requirement would be visible without the extension of the existing parapet along the northern façade of the building. This additional parapet creates additional heritage issues by providing a parapet where it did not originally exist and also the form of the parapet that essentially seeks to replicate the original façade elsewhere on the building although it was ultimately agreed that this could be addressed through a different design and materials. 50With the benefit of the site inspection, I accept the description of Ms Morrish that the height associated with the breach of the development standard is not suitable in its context, as it does not sit comfortably with the existing form of the church or the roof. It is not responsive to the design of the original building, interrupts the silhouette of the building and changes the silhouette where it is visible to the public domain and nearby buildings in a way that reduces the heritage qualities of the original building. It is also a questionable design approach to construct a new parapet that increases the bulk of the northern facade of the building to hide an extension that breaches the height standard. 51For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is inconsistent with the objective (a) of the height standard and as such, development consent must not be granted. 52For completeness, I will briefly deal with the other matters in dispute. 53Objective (b) seeks an appropriate transition, in relation to height, between the proposed development and heritage items and buildings in the heritage conservation area. 54The heritage items are identified in Sch 5 of LEP 2012 and some were visited on the site inspection. The items represent a range of different forms of residential development. For example, the group of terraces at 247-253 Forbes Street (Item 313), the flat building at 347 Liverpool Street (Item 369) and the dwelling at 278 Liverpool Street (Item 358) are all close or adjoin the site but have different heights because they are different forms of residential development. 55While I have concluded that the height of development is inappropriate to the condition of the site and its context, objective (b) asks a different question on height. The objective seeks an appropriate transition between the proposed development and heritage items and buildings in the heritage conservation area. Given that the existing transitional arrangements between heritage buildings and buildings in the Conservation Area remain largely unchanged by the proposal, I am satisfied that the development is consistent with objective (b). 56Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the objective (b) of the height standard. 57Objective (c) seeks to promote the sharing of views. As I understand, the council accepts that the proposal is consistent with this objective following the submission of amended plans that became the plans for which development consent was sought. While a number of residents maintained their concerns, I am satisfied that concerns over views loss associated with the breach of the height standard have been addressed in the amended plans 58For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the objective (c) of the height standard.

Is compliance with the development standard is unreasonable or unnecessary? 59The written request states that the variation to the height standard is reasonable and necessary as it provides a building form that:

• has a bulk and scale that is consistent with the character of surrounding development,
• is consistent with the desired future character of the area,
• has no environmental effect of any significance, and
• provides good amenity to the apartment in question. 60Further, to achieve compliance with the height standard, an area of the internal ceiling of the auditorium would require modification. 61I do not accept that the applicant has justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. 62The breach of the height standard facilitates a bulk and scale that is inconsistent with its heritage significance because of the visibility of part of Apartment 04 and the extended parapet. Even though the FSR requirement applies and there is compliance, it is not a matter that necessarily supports a variation to the height standard. The heritage item is a significant constraint on the development of the site given its floor area and site coverage and any reference to compliance with the FSR requirement is largely artificial and misleading. Also, the argument that to achieve compliance with the height standard would necessitate the removal of an area of the internal ceiling of the auditorium is not supportable and simply highlights the inclusion of floor area that cannot reasonably be located on the site without either unacceptable heritage or visual impacts.

Are there sufficient environmental planning grounds to justify contravening the development standard? 63For the reasons in par 62, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.

Heritage significance 64Clause 5.10(4) provides that before granting consent under this clause in respect of a heritage item or heritage conservation area, the Court must consider the effect of the proposed development on the heritage significance of the item or area concerned. The building is identified in Sch 5 as a heritage item of Local significance (Item 1357). The statement of significance is set out in par 8. 65The site is also located in the Conservation Area in Sch 5 where it is identified as being "contributory". Clause 3.9.6 of the DCP states: Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area. The contribution of these buildings is based on studies carried out by heritage consultants for the City. (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement and responding sympathetically to: (a) topography and landscape; (b) views to and from the site; (c) significant subdivision patterns; (d) the type, siting, form, scale, materials and details of adjoining or nearby contributory buildings; and (e) the interface between the public domain and building alignments and property boundaries. (2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above. 66Clause 3.9.7 addresses contributory buildings and relevantly states: Contributory buildings are buildings that make an important and significant contribution to the character and significance of the heritage conservation area. They have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area. They are buildings: · from a significant historical period and are highly or substantially intact; or · from a significant historical period and are altered yet recognisable and reversible. (1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances. (2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: (a) respect significant original or characteristic built form; (b) respect significant traditional or characteristic subdivision patterns; (c) retain significant fabric; (d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing; (e) remove unsympathetic alterations and additions, including inappropriate building elements; (f) use appropriate materials, finishes and colours; and (g) respect the pattern, style and dimensions of original windows and doors. (4) Where an addition to the building is proposed, significant external elements are to be reinstated. 67I accept the evidence of Ms Hill that the additions above the existing building parapet, while set back, will unacceptably visually impact on the significance of the building as the additions will be visible above the parapet. The visibility above the parapet does not respect the Beaux Arts design principles in particular the importance of the parapet in defining the form of the building. I also accept that the roof top additions allow the new massing to unacceptably interfere with the silhouette of the existing roof profile of the building as the massing is visible from both Forbes Street and Liverpool Street. On this basis, the roof top additions are inappropriate. 68The extension of the parapet on the north facade to match the original height was a consistent area of disagreement between the heritage experts. While there was some discussion on an appropriate design and materials for the proposed parapet extension, Ms Hills preferred position was for no extension as it was inconsistent respect the Beaux Arts design principles. I accept the position of Ms Hill that there should be no extension of the parapet for this reason. This has added weight when the parapet extension has been included designed only to conceal the additional bulk on the roof, which does not comply with the height standard. In my view, this is not an appropriate reason for the parapet extension and the consequent heritage impacts. 69I have already accepted the evidence of Ms Morrish that the height associated with the breach of the development standard is not suitable in its context. Her description that the area above the auditorium is 'perched' on the roof and does not sit comfortably with the existing form of the church or the roof is an apt description. In my view, the reasoning behind that finding is also appropriate when considered in a heritage context (as distinct from a variation to the height standard). 70Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the item, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application for this reason alone. 71I am also satisfied that parapet extension and roof top addition is in conflict with cl 3.8.7(3)(a) of the DCP in that it does not respect significant original or characteristic built form.

Amenity impacts 72The council identified the residential dwellings at 278 Liverpool Street and unit 6/1B Darley Street as being unacceptably affected by the proposed development through loss of privacy, loss of views and overbearing appearance.

The evidence 73Ms Morrish states that the proposed location of the two-storey addition over the foyer area will unacceptably impact on 278 Liverpool Street by way of overlooking and a sense of enclosure to both balconies of this dwelling as the existing building is located very close to the common side boundary. Ms Morrish identifies potential overlooking opportunities to the rear yard and swimming pool and the balcony to the rear of the dwelling. She notes that bedroom and bathroom windows of the two-storey addition (Apartments 01 and 03) are located only 1.385 m from the common boundary. The small setback means that the design will create significant privacy impacts, in addition to the visual impacts due to the proximity of the bulk of the building so close to the common boundary. Ms Morrish states that a setback of 6m is appropriate, being half of the separation distance suggested by the RFDC. 74Ms Morrish also states that the rear balcony currently has views of the city skyline, including the Centrepoint tower and the MLC centre, and these views will be totally lost with the proposed development. In accepting that that the complete retention of the city skyline views is unreasonable because of the councils planning controls for the site, a 6m setback would likely allow more of the outlook and some of the views to be retained. 75Unit 6/1B Darley Street is the southernmost terrace in a row of battle-axe terraces where the rear courtyards, living room and the bedroom windows face the proposed development. Ms Morrish identifies potential overlooking opportunities to the rear yard. The two-storey addition also locates a 11.5 m high wall within 1.385 m of the common boundary, with consequent massing impacts. This will, in effect, take most of the open sky available to the small courtyard and will create an unacceptable visual prominence over the only open space available for this property. Again, Ms Morrish suggests a 6 m setback for the two-storey addition that adjoins this property as being appropriate. 76Ms Morrish also states that views from this property are only available from the first floor bedroom windows although the view is different from each of the two bedroom windows. The views include the city skyline, including the Centrepoint tower and the MLC centre. The development will remove the views from both windows and according to Ms Morrish is unacceptable as the views are essentially captured by the proposed development at the expense of the adjoining property. In her opinion, this does not represent view sharing, in any way. 77Mr Dickson addressed this contention for the applicant. He states that there are no setbacks identified for the site in the DCP so setbacks and alignments must be consistent with existing alignments (cl 4.2.2.1(1)). The building at 278 Liverpool Street is built to the boundary and the setback to unit 6/1B Darley Street is consistent with the existing setback. Overall, the building setback of the proposed development is consistent with the existing development and character. In any event, the articulation and varied setback of the eastern elevation reduces the massing and appearance from the adjoining property to an acceptable level. 78Mr Dickson maintains that 278 Liverpool Street borrows amenity from the site by allowing views over this property to the city skyline and as such any view loss is acceptable. He accepts that views from one bedroom window in unit 6/1B Darley Street will be lost but the view from the other bedroom is maintained. He describes the view loss from both properties as minimal.

Findings 79Both the properties in question were inspected on the first day of the hearing and evidence from the owners was provided at this time. Both owners strenuously opposed the development based on loss of privacy, loss of views and the proximity of the proposed development to their properties. With the benefit of the site inspection, I agree with the conclusions of Ms Morrish. 80Mr Dickson placed some emphasis on cl 4.2.2.1(1) that states that where "no setback or alignment is shown on the map, the setback and alignment must be consistent with adjoining buildings. When the setback or alignment varies, either the adjacent or average front setback or alignment is to be adopted". There can be no argument that the existing building has a small setback of around 1.385m to the common boundary with 278 Liverpool Street and that this setback, for the existing single level structure has little, if any impacts. The amenity problems arise where the applicant seeks to generally maintain this setback for the new two levels above. I do not accept that there is any warrant to maintain this setback simply because it has existed since the construction of the heritage building. Also, some caution must be used in relying too heavily on cl 4.2.2 1 given the characteristics of the site that include its heritage status, its corner location, the wide range of building forms, setbacks and alignments in the area on which to rely on, a building that occupies a large portion of the site and predates all recent planning controls. 81While I accept that some attempt was made to provide setbacks and articulation along the eastern boundary with 278 Liverpool Street to provide some relief to the proximity to the adjoining residential dwelling, it is insufficient to provide any meaningful relief from the height and bulk of the proposed building. It may also be possible to screen the bedroom and bathroom windows however it is not possible to overcome the overbearing presence of the proposed building so close to the decks, swimming pool and rear yard from 278 Liverpool Street and the rear courtyard of unit 6/1B Darley Street. 82I also accept the conclusion of Ms Morrish where she states that it may not be possible to preserve the existing views from the adjoining properties but what was proposed does not represent a genuine and reasonable attempt at view sharing. During the hearing some changes were suggested to address the loss of views from the bedroom windows of unit 6/1B Darley Street through the amendment of the privacy screen and location of the balconies for Apartments 01 and 03. The applicant reluctantly accepted some amendments but these changes do not go far enough, in my view, to overcome the loss of views and outlook from this property. 83In my view, the appropriate setback is best determined through a more thorough merit assessment that provides for greater protection of the views, privacy and outlook of 278 Liverpool Street and unit 6/1B Darley Street. 84I consider that the visual impact of the height and massing along this elevation significant and sufficient to warrant the refusal of the application for this reason alone. 85Relevantly, cl 4.2.3.10 of DCP 2012 states: 4.2.3.10 Outlook (1) Provide a pleasant outlook, as distinct from views, from all apartments. (2) Views and outlooks from existing residential development should be considered in the design of the form of new development. Note: Outlook is a short range prospect, such as building to building, while views are more extensive or long range to particular objects or geographic features. 86If the proposal is considered against cl 4.2.3.10(2), I can comfortably conclude that views and outlooks from existing residential development have not considered sufficiently in the design of the form of proposed development.

Orders 87The orders of the Court are:

1. The appeal is dismissed.
2. Development Application D/2013/515 for alterations and additions to an existing heritage item at 262-272 Liverpool Street, Darlinghurst is refused.
3. The exhibits are returned with the exception of exhibit 1.

G T Brown 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: 14 January 2014