Bellevue Street Holdings Pty Limited v Council of the City of Sydney

Site and locality

1. The site is located on the western side of Bellevue Street with a secondary street frontage to Bellevue Lane. It comprises two allotments with a combined area of 176.3sqm and a width of about 7.1m. There is a fall across the site from east to west of approximately 2.5m.
2. The site is currently occupied by two double storey Victorian terrace dwellings, which are part of a terrace row with five dwellings (7-15 Bellevue Street). The terraces on the site have later additions at the rear: 15 Bellevue Street has full site coverage with no private open space and 13 Bellevue Street provides open space on a rear first floor terrace and has an at grade car parking space off Bellevue Lane. The site was previously approved for use as a brothel but both properties are now vacant.
3. Adjoining the site to the north is a terrace (11 Bellevue Street) and to the south is a large seven storey commercial building (17-21 Bellevue Street). Development to the east, on the opposite side of Bellevue Street, is two storey terraces set above the street level. To the west, on the opposite side of Bellevue Lane are garages at the rear of terraces that front Belmore Street.
4. Surrounding development is predominantly residential with two to three storey terraces interspaced with residential flat buildings and larger commercial buildings, including a four storey 1940s factory building on the corner of Bellevue Lane and Albion Way, which is now used as a residential flat building with ground floor retail (11 Albion Way), a recent four storey residential dwelling on the corner of Bellevue Lane and Belmore Lane (8 Belmore Lane) and a commercial building at 29-37 Bellevue Street. A development application (D/2012/1402) has recently been approved for a three to four storey building at 1 Bellevue Lane.

Background and the proposal

1. The application was lodged with council on 16 April 2014, refused on 18 May 2015 and the Appeal was filed on 17 June 2015. The applicant was granted leave to rely on amended plans on 14 October 2015 (Exhibit A). The application for which consent is sought is to consolidate 13 and 15 Bellevue Street into a single lot, carry out alterations and additions to the two existing terraces on those lots and construct a garage and third dwelling fronting Bellevue Lane.
2. The proposal would result in 3 x 3 bedroom strata dwellings on the consolidated site. Unit 1 is the terrace on 13 Bellevue Street, Unit 2 is the terrace on 15 Bellevue Street and Unit 3 is the new dwelling at the rear. The development is described in the Amended Statement of Facts and Contentions (Exhibit 1) as consisting of: (a) Basement (ground floor level on Bellevue Lane): i. garage with car parking for two cars; ii. stair access to front door of Unit 3 and rear gardens of Units 1 and 2. (b) Ground floor (existing terrace dwellings on Bellevue Street): i. demolition of both existing rear wings and all interiors; ii extension of the ground floor to the whole width of the site with a recess between 13 and 15 Bellevue Street; iii. demolition of the internal walls and relocation of the stairs to create an open plan living, dining and kitchen area; and iv. glazed sliding doors providing access to private open space. (c) Ground floor (new dwelling on Bellevue Lane): i. entrance to Unit 3 and stairs to rear of Units 1 and 2; ii. two bedrooms, laundry and bathroom. (d) First floor (existing terrace dwellings on Bellevue Street) i. demolition of the rear wing; ii. extension to the full width of the side for 15 Bellevue Street, with a recess between 13 and 15; iii. a side setback on the northern boundary between 13 and 11 Bellevue Street; iv. relocation of the stairs and construction of two bedrooms and a bathroom; and v. 1.9 m high openable glazing with a balustrade and aluminium louvres to the rear. (e) First floor (new dwelling on Bellevue Lane) i. one bedroom, a bathroom and a lounge room with floor to ceiling glazing and aluminium louvres facing Bellevue Lane. (f) Second floor (existing terrace dwellings on Bellevue Street) (i) rear roof extension to the rear to convert the existing roof into master bedroom and ensuite. (g) Second floor (new dwelling on Bellevue Lane) i. kitchen and roof top terrace with floor to ceiling glazing and aluminium louvres facing Bellevue Lane. (h) Elevations: i. the Bellevue Lane (rear) elevation of Unit 3 includes a double width roller door and pedestrian entry door at street level with large windows on the level above. The facade material consists of black Duratec Zeus and Innowood Spotted Gum detailing. ii. The proposed eastern elevation of Unit 3, facing into the rear of Units 1 and 2 consists of white painted facade at ground level with the spotted gum on the levels above. A glass block window extends between levels one and two and a smaller window on the first floor from the bathroom. iii. The proposed western elevation of the two terraces, facing Unit 3 includes glazing and aluminium louvres; and iv. The front elevation to Bellevue Street retains and reinstates the heritage significance elements of the two terrace dwellings.

Statutory framework

1. The site is zoned R1 General Residential under Sydney Local Environmental Plan 2012 (LEP). The proposal is "multi dwelling housing" and is permissible with consent.
2. The objectives of the R1 zone, which under cl 2.3(2), the consent authority must have regard to 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.
3. Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 9m. Under cl 4.4 and the Floor Space Ratio (FSR) Map the maximum FSR is 1.5:1. The proposal complies with the FSR standard (1.3:1) but exceeds the height standard (12.5m) and the applicant has submitted a written request to vary the height standard under cl 4.6 of the LEP which provides: 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 (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
4. The key dispute between the parties is whether the requirements of cl 4.6 to vary the height standard are satisfied, which is discussed later in this judgement.
5. The site is within a Heritage Conservation Area (HCA) under the LEP and cl 5.10(4) of the LEP requires that the effect of the proposal on the heritage significance of the HCA must be considered before consent can be granted.
6. Clause 6.21 of the LEP applies to the development and provides that consent must not be granted unless the proposed development exhibits design excellence (cl 6.21(3)) and prescribes matters that regard must be had to in considering whether design excellence is achieved (cl 6.21(4)).
7. Sydney Development Control Plan 2012 (DCP) is relevant. The site is identified as being contributory on the Buildings Contribution Map of the DCP. The taller commercial buildings in Bellevue Street (17-21 and 39-37 Bellevue Street) and the dwelling at 1 Bellevue Lane are identified as detracting buildings. Section 3.9 - Heritage provides objectives and provisions, which are relevant to the development, including Heritage conservation area (s 3.9.6), Contributory buildings (s 3.9.7) and Detracting buildings (s 3.9.9). Section 2 of the DCP includes Locality Statements. The site is within the Riley Area of the Surry Hills Locality. The character statement and supporting principles for the Riley locality area in s 2.11.2 relevantly include: …. The existing mixed use character of the precinct will be maintained. New infill is to respond to the existing character and scale of development. Existing rows of consistency are to be maintained, such as intact terrace house streets and heritage streetwall buildings. Development opportunities will be primarily located on larger lots and less consistent streets. Retail uses will be concentrated along Foveaux Street to enhance existing retail and assist in the retention of residential pockets. Principles (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Maintain consistent rows of built form such as taller warehouse buildings on Foveaux Street and small lot terraces with a consistent scale and character north of Foveaux Street.
8. "Multi dwelling housing" is not a type of development specifically identified in s 4 - Development Types of the DCP but "All development proposals must reference the provision or provisions that best describe that type of development". The parties initially disagreed on whether s 4.1-Single Dwellings, Terraces and Dual Occupancies or s. 4.2 Residential Flat, Commercial and Mixed Use Developments best described the development. The planning experts generally agreed that s 4.1 applies. I accept that s 4.1 best describes the development as it comprises two existing terraces and a single dwelling. Nevertheless, under either s 4.1.1 or s 4.2.1 the development is not to exceed two storeys, which is the maximum number of storeys shown on the Building Height in Storey Map in the DCP.
9. Section 4.1.3 of the DCP provides objectives and provisions for residential amenity, including solar access, deep soil planting, private open space and visual privacy. Section 4.1.6 refers to secondary and laneway dwellings and, although not referred to in the contentions, it provides guidance to the form of development that is anticipated to occur at the rear of terraces and facing a laneway, such as the individual lots on the site and the adjoining terraces.

Evidence

1. The Court visited the site and surrounding area and heard planning evidence from Mr G Chapman, for the applicant, and Ms E Finnegan, for the council.

Height

1. The experts agree that the maximum height of the development is 12.5m to the top of the parapet at Bellevue Lane, which does not comply with the maximum height of 9m under cl 4.3 of the LEP.
2. Mr Chapman prepared a written request required under cl 4.6(3) of the LEP seeking to justify the contravention of the standard (the Request).
3. The Request provides that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl4.6(3)(a)) for the following reasons: The existing building height to Bellevue Lane, the recent development at 8 Belmore Lane and the approval at 1 Bellevue Lane, allowing 4 storey buildings to the lane, confirms that the proposed building height is consistent with the planning for development on the lane. The proposed 3-4 storey building is compatible with the built form within the visual catchment, achieves a suitable transition to 7 storey "building at 17 Bellevue Street (southern boundary) and is consistent with the approved buildings at 8 Belmore Lane and 1 Bellevue Lane. The building ensures a compatible built form with improved presentation to the lane and that good residential amenity is achieved to the" proposed dwelling - with living rooms and open space at the upper level receiving solar access. A development form meeting the 9m height control on this in-fill site to the lane is unreasonable and unnecessary noting the development would not presents a compatible built form to the existing and approved development within the visual catchment of the site. The proposed 3-4 storey form will not be visually dominant and will not contribute unreasonably to visual bulk and scale when viewed from the public domain or adjoining properties. The upper levels of the building exceeding the 9m height control will not result in unreasonable overshadowing, noting the solar study -modelling submitted with amended plans confirms the 3 - 4 storey building does not generate additional overshadowing to the terrace houses from Bellevue Street compared to a 2 storey building form.
4. The Request states that there are sufficient environmental planning grounds to justify contravening the development standard (cl4.6(3)(b)) because: ….the underlying objectives of the controls are achieved. The 9m height control in the immediate locality including the block bound by Bellevue Street, Belmore Lane, Bellevue Lane and Albion Way has largely been abandoned by existing development, recent development and approvals at 1 Bellevue Lane (D/2012/1402) and 8 Belmore Lane (D/2008/857). The 3 -4 storey building form achieves a suitable transition to the 7 storey building adjoining the southern boundary of the subject site and is compatible with the building form within the visual catchment. The development proposal is an acceptable height for this infill site on Bellevue Lane being compatible with the form and scale of buildings on the lane and ensures the proposed building achieves good residential amenity.
5. In the joint report Mr Chapman summarised his position that the cl 4.6 variation should be upheld on the basis that: ..the development on this infill site to Bellevue Lane is compatible with the height of building within the visual catchment of the site and achieves a suitable transition to the 7 storey building adjoining the southern boundary. The compatibility of the building height ensures the building will not be visually dominant or out of character when viewed from the public domain or adjoining properties, and will not result in unreasonable amenity impacts to the surrounding properties.
6. Ms Finnegan did not support the cl 4.6 variation to the height standard for the following reasons: The buildings within Bellevue Lane that are over the height limit are identified as detracting or neutral buildings within the heritage conservation area. Reliance on surrounding non-compliant buildings, which were not assessed under the same planning controls, as justification for the height non-compliance does not meet the objective Clause 4.6. The proposal fails to give adequate justification as to why compliance with the height development standard is unreasonable or unnecessary. It is not unnecessary or unreasonable for the subject site to comply with the height development standard. The site contains two terrace dwellings which are within a row of 5 terraces. It is reasonable and possible for a compliant scheme to be achieved at the rear of the site. The current planning controls indicate the desired future character of the area, and the anomalies approved under previous planning instruments are not likely to be reproduced under the current controls.
7. Ms Finnegan notes that the applications referred to by Mr Chapman for 1 Bellevue Lane and 8 Belmore Lane were assessed under South Sydney Local Environmental Plan 1998 (LEP 1998), which did not contain height or FSR controls, (these were in South Sydney Development Control Plan). These properties have areas of 55.5sqm and 44.2sqm respectively and in order to provide functional uses, 3-4 storeys was considered acceptable. Furthermore, 1 Bellevue Lane is an infill development between two higher buildings, five storey on one side and eight on the other. 8 Belmore Lane is on the corner and responds to larger commercial buildings on the other side of Belmore Lane, which have different controls.

Findings

1. The parties referred to the decision in Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001, where Brown C outlines the following assessment framework for a variation under cl 4.6: 39 Clause 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)). ….. 41 A 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.
2. The parties agree that the proposal would be consistent with the objectives of the R1 zone but disagree on whether it will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)) and whether the Request adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b).
3. The 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,
4. In Bates Smart at [47] Brown C considered the intent of objective (a) and states: 47. The 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.
5. There are no physical characteristics of the site such as slope that would preclude compliance with the height control. Mr Chapman acknowledged that it would be possible to develop the site without breaching the standard. The existing context of the site includes the adjoining seven storey commercial building (17-21 Bellevue Street) and the character of the eastern and western side of Bellevue Lane is different. However, the site is part of a group of five terraces, and although they have later additions to the rear, the original building line is consistent. The predominant character of the laneway is of single storey garages to the rear of terraces with two larger buildings at the end of the lane and two larger commercial buildings within the lane.
6. The planning controls establish the likely future context for the laneway. I do not accept Mr Chapman's opinion that the planning controls have been abandoned by the approval of 1 Bellevue Lane and 8 Belmore Lane. These applications were approved under different controls and had site constraints and context that are distinguishable from the site. The context surrounding the site is varied, with terrace rows interspersed with larger buildings. The current planning controls recognise this variety and provide different zonings and specific height and FSR controls to different areas. Notably, the site and its surrounding area is zoned R1, with a height of 9m and FSR of 1.5:1, recognising its existing character of smaller lots with terrace type development. Whereas, Belmore Lane at the end of Bellevue Lane, is zoned B4 Mixed Use with a height of 18m and FSR of 3:1 recognising the larger lots and scale of development fronting Foveaux Street.
7. Under the current planning controls, the terraces are within a HCA and are identified as contributory buildings, whereas the adjoining commercial building and other larger buildings in the street are identified as detracting or neutral buildings. Section 3.9.9 of the DCP provides: Detracting buildings are buildings that are intrusive to a heritage conservation area because of inappropriate scale, bulk, setbacks, setting, design or materials. They do not represent a key period of significance and detract from the character of a heritage conservation area. he DPC is clear that .
8. As detracting, the adjoining building does not represent the existing character and scale of development that the Locality Statement in the DCP seeks to respond to. Rather, the DCP aims to maintain the consistency of existing rows, such as intact terrace house streets. While the proposed works to the terraces along Bellevue Street will achieve this outcome, the proposal will change the existing scale and character of the terrace allotments facing Bellevue Lane.
9. Furthermore, s 4.1.1 of the DCP requires a two storey form of development for the site and laneway and the objective seeks to "Ensure that development reinforces the existing and desired neighbourhood character ..". Other than the adjoining, detracting building, there are no particular circumstances of the site that distinguish it from the other terraces in the row or the area and if a three to four storey building is appropriate on this site it could arguably be appropriate on the adjoining terraces or those opposite. Bellevue Lane is narrow and the height and scale of the proposed development on the site, together with existing development along a significant part of the lane would not be consistent with the existing or desired character of the laneway sought by the planning controls. The proposal therefore is not consistent with Objective (a) of cl 4.3 of the LEP.
10. In relation to Objective (b) of cl 4.6, Brown C in Bates Smart states at [55]: 55 While 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).
11. The proposal seeks to provide a transition between the adjoining 7 storey commercial building and the remaining terraces, which was supported by council's heritage and urban design staff and the applicant's heritage consultant. While this may be a valid approach it is not what is sought by the Objective (b), as the proposal utilises part of the contributory terrace row, rather than intervening land, to provide the transition between the commercial building and the terraces. It increases the height and scale of development around the remaining terraces and the laneway, alters the existing arrangement between the commercial building and the contributory buildings and does not maintain the consistency of the terraces. It would result in two of the five terraces having a different height and scale to the laneway or would be a precedent for the other terraces to fill in the gap and form a transition to 11 Albion Way resulting in a three to four storey scale along the northern section of the Laneway. The proposal is therefore not consistent with Objective (b) of cl 4.6 of the LEP.
12. The Request relies principally on the existing context having a variety of building forms, the abandonment of the planning controls through other approvals and the transition provided by the development. For the above reasons, I do not accept these reasons or that there are circumstances particular to this site or this development that demonstrate that compliance with the standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. I am therefore not satisfied, as required under cl 4.6(4)(a), that the Request has adequately addressed the matters required to be demonstrated under cl 4.6(3).
13. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.
14. Accordingly, it is not necessary for me to discuss the other matters in dispute between the parties. However, the merit issues of height, bulk and scale of the development to Bellevue Lane have been discussed above. The experts disagree on whether the proposal achieves acceptable amenity. This dispute centred on the adequacy of the private open space to be provided to Units 1 and 2.
15. Section 4.1.3.5 of the DCP requires private open space with a minimum area of 16sqm. The proposal provides 13.8sqm for Unit 1 and 12.6sqm for Unit 2. Mr Chapman considers that the open space is adequate as it is directly accessible off the living areas of the terraces and there is a further 8.5sqm of open space at the front of the terraces. Ms Finnegan does not consider the private open space is adequate as it has poor amenity receiving no solar access between 9am and 3pm on the winter solstice and being surrounded by development of three sides. In her opinion, the area at the front is not private open space as it adjoins the street and, even if screened, would not provide usable private open space.
16. I accept Ms Finnegan's opinion. The deficiency in area of private open space could be acceptable if it were compensated for by increased amenity. However, the proposed open spaces are 4m-5m slots between the two storey plus attic terraces to the east, the new three storey dwelling to the west, which although architecturally detailed, presents effectively a blank facade to the area, the seven storey blank façade of the commercial building to the south and the two storey blank wall of the adjoining terrace to the north. While this would of itself not be a reason to refuse the application it is a negative feature of the proposal.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. The development application (D/2014/510) for consolidation of two adjoining allotments, alterations and additions to the two existing terraces and construction of a garage and third dwelling at 13 and 15 Bellevue Street, Surry Hills, is refused. 3. The exhibits, except Exhibit 1, are returned. Annelise Tuor 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: 07 April 2016