Belvoir Developments Pty Ltd v City of Sydney Council

Land and Environment Court (NSW)|2017-05-31|Before: Danks Street P

Background

COMMISSIONER: Belvoir Developments Pty Ltd ('the Applicant') has appealed the deemed refusal by the Council of the City of Sydney ('the Respondent') of its development application (D/2016/512) for demolition of an existing building and construction of a part 4/part 5 storey residential flat building with basement car parking.
The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 ('EP&A Act').
The proposed development is located at 8-10 Fitzroy Place, Surry Hills ('the Subject Site'), which has an area of 658.8m2, and is currently occupied by a single story brick warehouse/workshop building on its western side. This building is attached to a two-storey brick building on the eastern side of the Subject Site. Commercial premises currently operate in the ground floor of the both buildings.
The appeal was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 ('the LEC Act') on 30 January 2017. During the site inspection undertaken as part of the s 34 conciliation, submissions were received from the following objectors: 1. Mr Daniel Haertch, the owner of a building at 5 Fitzroy Place, located opposite a portion of the Subject Site; 2. Mr Ronen McSweeny and Mr Brent Alexander, owners of dwellings within Figtree Gardens, a property with frontage to Bourke St, but the rear of which is located at the end of Fitzroy Street; 3. Mr Andrew Coburn, of Mecone Planning, on behalf of residents of a property adjoining the rear of the Subject Site in 177A Albion St; and 4. Mr Kevin Snell, the owner of a property adjoining the rear of the Subject Site in Albion St.
Leave was granted for the admission of material from the s 34 conciliation conference in this hearing. This included an agreed set of notes summarising submissions from the objectors which was tendered as evidence by the Respondent during the hearing.

Environmental Planning and Assessment Act 1979

Section 79C(1) of the EP&A Act states: "79C Evaluation (1) Matters for consideration--general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest."

Sydney Local Environment Plan 2012

Development on the Subject Site is subject to the Sydney Local Environment Plan 2012 ('SLEP 2012').
Under SLEP 2012 the Subject Site is zoned R1 General Residential. The objectives of this zoning are to: "• provide for the housing needs of the community. • provide for a variety of housing types and densities. • enable other land uses that provide facilities or services to meet the day to day needs of residents. • maintain the existing land use pattern of predominantly residential uses."
The height of buildings on the Subject Site is controlled under cl 4.3 of SLEP 2012. The objectives of this clause 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, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square: (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces."
Under cl 4.3 the maximum permitted height of a building on the Subject Site is 15m.
The maximum Floor Space Ratio ('FSR') for the Subject Site is controlled under cl 4.4 of SLEP 2012. The objectives of this clause are to: "(a) provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality."
The FSR control for the Subject Site is 2:1.
The development is subject to the provisions of cl 5.10 Heritage Conservation of SLEP2012, the objectives of which are to: "(a) conserve the environmental heritage of the City of Sydney, (b) conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) conserve archaeological sites, (d) conserve Aboriginal objects and Aboriginal places of heritage significance."
Clause 5.10 requires that: "Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area"
The Subject Site is located within the Bourke Street HCA..
Clause 5.10(4) requires that: "The 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)."
Because the proposed development includes the erection of a new building, it is also subject to cl 6.1 Design Excellence of SLEP 2012, the objective of which is to deliver the highest standard of architectural, urban and landscape design.
Clause 6.1(3) requires that development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.
Factors to which the consent authority must have regard in relation to cl 6.1(3) are provided in cl 6.1(4), and are: "(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."

State Environmental Planning Policy No 65 Design Quality of Residential Flat Development

State Environmental Planning Policy No 65 Design Quality of Residential Flat Development ('SEPP65') aims to improve the design quality of residential flat development in New South Wales, and recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building has 3 or more storeys and contains 4 or more dwellings.
SEPP65 sets a consistent policy direction for residential flat development in New South Wales and provides a uniform State-wide framework for more detailed planning for residential flat development. It has a statutory effect on development and as a consequence may supplement the provisions of state environmental planning policies, local environmental plans and development control plans.
SEPP65 has a close and integrated relationship with the Apartment Design Guide ('ADG') published by the NSW Department of Planning and Environment, which provides consistent planning and design standards for residential apartments in New South Wales. Parts 3 and 4 of the ADG provide objectives, design criteria and design guide for the siting, design and amenity of apartment development.
The policy came into effect on 17 July 2015 and applies to development applications for residential flat development made after that date. It is applicable to the development application that is the subject of the current appeal.

Sydney Development Control Plan 2012

The purpose of the Sydney Development Control Plan 2012 ('SDCP 2012') is to supplement the SLEP 2012 and provide more detailed provisions to guide development.
The Subject Site is located within the Surry Hills North locality in the City of Sydney and, as noted previously, within the Bourke Street North HCA.
Clause 2.11.3 of SDCP 2012 provides principles for development within the Surry Hills North local character area. These are: "(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 significant views to the north along the Crown and Bourke Street corridors, from the ridge. (d) Maintain the character of tall buildings located along the ridge such as the St Margaret's Hospital development. These tall buildings act as landmarks and do not set a precedent for the scale of surrounding development. (e) Reinforce street corners at the intersection of Crown and Fitzroy Streets, responding to the precedent of the Medina building and its setting. (f) Locate taller buildings around the intersection and pocket park at Bourke, Fitzroy and Foveaux Streets, defining the edges of the space and contributing to the character of Fitzroy Street of taller buildings located on street corners. (g) Maintain the landscaped setback at the Crown Street Primary School site which creates a break in the street wall buildings and contributes to the character of Crown Street. (h) Maintain the consistent character of intact rows of terrace houses. The integrity of the row is to be maintained, where intact rows have been interrupted by unsympathetic development. This unsympathetic development does not create a precedent for future development. (i) Maintain the landmark presence of the steeple of the Chinese Presbyterian Church. (j) Maintain continuous awnings at the ground level throughout the retail strips. (k) Consolidate active ground level uses such as retail shops, cafes and restaurants along Crown Street and Bourke Street north. (l) Encourage supporting commercial and scattered retail uses at the ground level in areas such as Flinders Street. (m) Provide a mix of commercial and residential uses above active ground floor uses to ensure 24 hour activity and surveillance of the streetscape."
Section 3.6.9 of SDCP 2012 provides guidance to developments within Heritage Conservation Areas as follows: "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. New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. (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 of significance and responding sympathetically to: (a) topography and landscape; (b) views to and from the site (c) significant subdivision patterns and layout, and front and side setbacks; (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (e) the interface between the public domain and building alignments and property boundaries; and (f) colour schemes that have a hue and tonal relationship with traditional colour schemes. (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. (3) Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area. (4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area."

Contentions

During the hearing the parties agreed that the proposed development complied with the 15m height control applicable to the Subject Site under SLEP 2012, and so the proposed height of the development was not in contention.
The parties advised that, following discussion at the s 34 conciliation conference, and based on the amended plans tendered at the hearing, the remaining contentions related to issues of urban design, planning and heritage.

Urban design contentions

The contentions concerning urban design matters had been addressed in the joint report of the urban design experts, Mr Dickson and Ms Cronin referred to above at [12].
In their report the urban design experts had agreed that the amended plans that accompanied their report had provided a basis for resolution of the following contentions between the parties: 1. Apartment amenity: 1. The height of the level 4 ceiling, which the experts agreed could be increased from its originally proposed height of 2.4m, through use of a raked ceiling reflecting the pitch of the roof above. This had been incorporated into the amended plans. 2. Communal open space, the area of which (23.6% of site area) the experts agreed was satisfactory. The experts also recommended the inclusion of a condition of consent requiring the preparation of a detailed landscape drawing illustrating how the useability of the space would be maximised in accordance with the ADG. The Applicant noted that, given this, the proposal's provision of common open space could not be a reason for refusal of the proposed development. 3. The inclusion of an internal desk within the unit 001, which the experts agreed was acceptable on the basis that it was within a space that was part of a large room and which received adequate light and ventilation. The experts noted that the dimensions of that space were such that it could not be enclosed in the future for use as an internal room. 1. Overshadowing: 1. The experts agreed that while there was an overshadowing impact to the rear open space of number 48 Fitzroy Street, this impact could be removed through amendments to the southern wall of the proposed unit 305. This amendment had been incorporated into the amended plans and the outcome confirmed through the provision of a revised view from the sun diagram. They noted that the design did require some further resolution through the provision of a condition of consent on this matter. 1. Building separation and loss of privacy: 1. The experts agreed that privacy considerations in relation to neighbouring properties could be addressed through amendments to the proposed design, and that these amendments could be addressed through the provision of conditions of consent to require that details for privacy treatments be submitted to Council for approval by its area planning team manager prior to obtaining a construction certificate. These would address the following recommendations of the urban design experts: 1. The proposed inclusion of a screen to provide a reasonable level of privacy to portions of the elevated deck within the neighbouring property at 177A Albion Street. The screen to be fixed to a structure located wholly within the Subject Site and not be fixed to a structure on the neighbouring property. 2. Increasing the height of balustrades from 0.9m to 1.2m in height to address privacy concerns of neighbouring properties to the north of the Subject Site. This change to be in lieu of the proposed horizontal projecting screens. Additionally, sliding operable vertical louvres above this balustrade would provide an additional layer of privacy without impacting on solar access to residents or restricting distance views. 3. The introduction of vertically angled blades to direct views obliquely to the western end Fitzroy Place in order to maintain the privacy of residents of the approved redevelopment at 5 Fitzroy Place. 4. Decreasing the balcony area on proposed unit 301, to create a non-trafficable roof space and so reduce the potential for overlooking to the property at 5 Fitzroy Place. 5. The introduction of a folded louvre to protect privacy to unit 004 and unit 001 fronting onto Fitzroy Place. 1. Public domain: 1. The urban design experts agreed the following amendments should be reflected in final plans for the proposed development should it receive consent: 1. Changes to the metal gate/battens proposed at the southern elevations of units 001 and 004 to improve internal privacy. These would be consistent with the proposals described above at (3)(a)(v). 2. The removal of aluminium battens to the external face of the planter at level 1 to simplify the building expression on to Fitzroy Place. 3. The inclusion of two smaller garage doors in preference to the one larger door proposed. 1. External appearance, materials and detailing: 1. The urban design experts recommended a series of amendments to the building form and appearance of the proposed development on the Subject Site. 2. The urban design experts agreed that the adoption of these amendments would improve the design quality of the proposed development. They further agreed that while some unresolved issues would remain, these could be addressed through the inclusion of conditions of consent that would require details of certain elements to be provided for approval by Council's area planning manager prior to the issuing of any construction certificate. These elements related to: 1. details of material colour and finishes, which should be provided via a physical sample board; 2. plans at the scale of 1:20 illustrating elevation in section details of all shading privacy devices; and 3. amended photo montages showing the final amended proposal. 1. Compliance with the Building Code of Australia (BCA): 1. The urban design experts noted that the position of the glazing line to unit 004, and the design of the louvred screen walls to the boundary walls of the eastern and western balconies, required further amendment. However they agreed that this could be addressed through the inclusion of a condition of consent requiring BCA compliance for the design elements. 1. Height, bulk and scale: 1. The urban design experts agreed that with the incorporation of the amendments proposed by them, and identified above, the bulk and scale of the development was appropriate to its context in relation to urban design considerations.
During the hearing the parties agreed that the above urban design contentions were satisfactorily resolved.
As a consequence of the above points, I consider that the proposed development has addressed the requirements of SLEP2012 in relation to the factors set out in cl 6.1 of SLEP 2012 to which I am required to give consideration, other than in relation to planning considerations, concerning floor space ratio and some aspects of landscape design, and heritage considerations. These are addressed below.

Planning and heritage contentions

The remaining contentions addressed during the hearing were as follows: 1. Should the proposed development comply with the ADG requirement for deep soil plantings? 1. The deep soil requirements of the ADG, s 3E provide that 7% of the site area of the proposed development should be allocated for deep soil planting. 1. Should certain terrace and balcony areas within the proposed development be included within the calculation of floors space ratio for the proposed development? 1. The parties could not agree as to whether certain terrace and balcony areas within the proposed development should be included within the calculation of FSR and so differed in their view as to whether the development complies with FSR control for the Subject Site. 1. Are the heritage impacts of the proposal acceptable? 1. This heritage contention centred on whether the scale of the proposed development was appropriate for the location on Fitzroy Place;

Should the proposed development comply with the ADG requirements for deep soil plantings?

As discussed at [28] the proposed development is subject to the provisions of SEPP65 and the ADG.
Section 3E of the ADG provides guidance for residential flat developments in relation to deep soil plantings. Specifically, that section of the ADG requires that residential flat developments should provide 7% of their site area for deep soil plantings.
For the proposed development in Fitzroy Place, this would equate to some 46 m² of the site that should be allocated for deep soil plantings. The amended plans provide approximately 34m² of deep soil area, equivalent to a shortfall of some 26%.
This matter was addressed in the joint report of the planning experts, Mr George Karavanas, for the Applicant, and Mr Alistair Smith, for the Respondent, and was the subject of testimony from these experts during the hearing.
In the joint report of the planning experts, Mr Smith had said that in his view the proposed development could readily achieve a level of deep soil plantings that was compliant with the ADG prescribed minimum of 7% of the total site area through a reduction in the size of the basement.
Mr Karavanas' opinion was that whilst the proposed development was non-compliant with respect to deep soil requirements, it was, nevertheless, consistent with the objectives of the deep soil control as it made provision for the installation of planters at the rear of the property.
During the hearing the respondent proposed that the removal of one of the car spaces in the proposed development and the re-allocation of this area to deep soil plantings would enable compliance with the deep soil provisions of the ADG.
The proposed development includes car parking for 14 vehicles. It was agreed by the parties that that was in excess of the minimum car parking provision for the development required under SLEP and SDCP 2012.
The Respondent said that the removal of one car space would not compromise the capacity of the development to meet Council's requirements with respect to the provision of minimum car spaces.
The Respondent noted that this amendment to the proposed development would also assist in maintaining the amenity of residents at 177A Albion St.
The Applicant's planning expert, Mr Karavanas agreed that this amendment to the proposed development would be achievable. He noted that, while the depth of the soils that would result from this amendment was constrained, such soils could sustain plantings of vegetation with a height of between 2m and 4m.
The planning experts agreed that, should such an amendment be made to the proposed development, the changes to landscaping plans that would flow from this could be addressed through a condition of consent and be subject to approval by Council prior to the issue of a construction certificate.
Having considered these points, I agree with the Respondent's proposal, supported by the testimony of the planning experts, that the plans for the proposed development should be amended to remove one car space, and reallocate that area of the site to deep soil plantings, so that the development would be compliant with the deep soil planting provisions of the ADG.

Should certain terrace and balcony areas within the proposed development be included within the calculation of FSR for the proposed development?

The definition of FSR is provided in cl 4.5 of the SLEP 2012: "The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area."
The definition of Gross Floor Area ('GFA') is also provided within the SLEP21012, and states: "gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above."
The parties agreed that the FSR control for the Subject Site under SLEP 2012 is 2:1. The Applicant submitted that the FSR of the proposed development was 1.97:1 and so, in its view, was compliant with the FSR control.
The Respondent, supported by the expert testimony of Mr Smith, contended that the calculation of gross floor area for the proposed development had been incorrectly calculated by the Applicant. This conclusion was based principally on the Applicant's non-inclusion of certain areas, denoted in the amended plans, as breezeways on levels 1, 2 and 3 of the proposed development.
Mr Smith had also noted that, within a supplementary report of the expert planners, he had said that the southern terraces of units 001 and 004 should be included within the calculation of GFA. However, during the hearing Mr Smith, confirmed that he was satisfied that these terrace areas need not be included in the calculation of GFA, and so did not contribute to the proposed development's FSR.
In relation to the breezeway areas, the respondent said these areas should be considered enclosed by the external screen, and so should be included within the calculation of GFA for the development.
The Applicant said that these breezeways areas were horizontal circulation spaces that were not enclosed by an external wall, as required under the definition of GFA and, as a consequence, should not be included within the calculation of GFA.
Mr Karavans' testimony, within the joint report of the planners, was that the proposed screens consisted of vertical blades of 50mm width, separated by a gap of 250mm, thus remaining open to the exterior. Consequently, Mr Karavanas said that, in his expert opinion, the terrace spaces were not enclosed, and so should be excluded from the calculation of GFA.
Mr Karavanas had noted, within the joint report prepared with Mr Smith, that Mr Smith had agreed that if the external screen was removed and the proposal maintained balustrade height less than 1.4 m then the terraces would not constitute an area that would contribute to the calculation of GFA. This point was not contested by the Respondent, nor by Mr Smith within his testimony during the proceedings.
Mr Karavanas had said that, in his opinion, the proposed screen provided a better street presentation and facade than that which would be presented through their removal and replacement by a balustrade.
The applicant drew the Court's attention to the Commissioner's judgement in the matter of GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 ('Danks v City of Sydney'), in which the Commissioner expressed the following view at [31]: "However, for the sake of completeness in dealing with the issues raised, it is my view that the area of the corridor, open up both ends does not form part of the GFA. The definition of GFA in LEP 2012 requires the floor area of each level to be measured from the internal face of external walls, measured at a height of 1.4 m above ground."
The Commissioner went on to say in that case that: "The external face of the wall cannot be characterised as an internal face, because an external wall must provide the weatherproofing that maintains the internal wall or face as a drywall, in other words an external wall has a specific function distinguishes…it from an internal wall…"
The Applicant said that, applying the principles of the Commissioner in Danks v City of Sydney, the terrace areas could not be considered to contribute to the calculation of GFA because the screens as proposed did not serve the specific function of an external wall. That is, they do not provide weatherproofing such that any internal wall would remain dry, and so they do not enclose these spaces.
Having considered the differing opinions of the experts, and noting the findings of the Commissioner in Danks v City of Sydney, I prefer the position of the Applicant on this question, and agree that the terrace areas within the proposed development are not enclosed. This is consistent with the findings of the Commissioner in Danks v City of Sydney.
Given that, I find that the proposed development is compliant with the 2:1 FSR control for the Subject Site.
Finally having regard to the matters I am required to consider under cl 6.1 of SLEP 2012, I am satisfied that, with the amendments identified above in relation to urban design and planning considerations, the proposed development does exhibit design excellence as required under cl 6.1 of SLEP 2012.

Are the heritage impacts of the proposal acceptable?

As noted at [24], under the provisions of cl 5.10 of SLEP 2012, before granting consent in respect of a heritage item or heritage conservation area (HCA), the consent authority, or the Court on appeal, must consider the effect of the proposed development on the heritage significance of the item or area concerned.
The current buildings on the Subject Site are identified within SDCP 2012 as neutral with respect to their contribution to the Bourke Street North HCA. Under the provisions of DCP 2012, neutral buildings do not contribute nor detract from the specific character of a heritage conservation area.
While the Subject Site falls within a HCA identified in SLEP 2012, the mixture of buildings in the area is eclectic and varies with respect to the contribution they make to the heritage character of the area.
With one exception, all other buildings in Fitzroy Place are identified as neutral items within the Bourke Street North HCA. The exception is the building at 5 Fitzroy Place on the corner Fitzroy Place and Hanslow St. This building is identified as a contributory item.
The Figtree Gardens complex of apartments at the eastern end of Fitzroy Place, and which addresses Bourke St, can be accessed from Fitzroy Place. This complex is identified as a detracting item within the Bourke Street North HCA.
During the hearing, testimony was provided by the heritage experts, Mr James Phillips for the Applicant and Mr Hui Wang for the Respondent.
A joint report and a supplementary joint report of the heritage experts were also tendered as evidence.
The heritage experts agreed that the following proposed amendments to the plans would improve the proposed development's design outcomes with respect to heritage considerations: 1. Level 4 amendments - the experts agreed that: 1. the introduction of a 600mm setback from the level 4 parapet is an improvement in the design as it provides a visual separation of the level 4 structure from the lower levels; and 2. the deletion of the roof area at the south-eastern and south-western corners would reduce the potential visual impact of level 4 of the proposed development. 1. Changes to building materials - the experts agreed that: 1. the proposed changes in building materials on the southern elevation of the proposed development would provide an improvement in its design as it would simplify the building's form; 2. proposed changes to the northern elevation are minor, but would provide a design improvement; and 3. a change in the design of the exposed concrete slab edges to provide for brickwork surfaces on the western and eastern elevation would improve the design. 1. Reducing the level 3 terrace size - the experts agreed that: 1. the proposed change to reduce the level 3 terrace area would be positive and would reduce the building's visual impact. 1. A change to privacy screens on the northern façade - the experts agreed that: 1. the proposed inclusion of only one panel of screening the balcony, as illustrated on the amended plans would not have an additional heritage impact.
The heritage experts noted that the proposed height of the parapet walls in the amended plans would be increased as a result of new parapets and gutters. They noted that the top of the level 4 structure, referred to as the ridge, would be increased by 250mm, and that the roof slope would be increased to be more than 45 degrees. The experts were of differing views as to the benefit of these changes.
Mr Wang, for the Respondent, had noted in the heritage expert's joint report that, in his opinion, the introduction of a parapet at level 4 would increase the proposed development's bulk and scale, and that this change may introduce the need for guard rails along the parapet to provide for safe roof access.
Mr Wang also expressed the view that the increase in the proposed development's height at the ridge by 250mm, along with the increasing roof pitch, would increase the proposed development's heritage impact.
Mr Phillips, for the Applicant, opined that the proposed change in height at the ridge would be imperceptible when viewed from the public domain and so would have no additional heritage impact. He noted that, based on the amended plans, the proposed building remained within the 15m height control for the Subject Site.
Mr Phillips further said that the proposed increase in parapet height would increase the aesthetics of that structure through providing an increase in its solidity.
The experts also differed in their opinion concerning proposed changes to building materials for the eastern and western elevations at level 3
In the joint report of heritage experts, Mr Wang said that the replacement of metal cladding with brickwork at level one the eastern and western elevations would increase the proposed development's mass and solidity, and reinforce the development's 4 storey form on these sides.
Mr Phillips disagreed with this opinion. In his view, the use of soldier courses of bricks to indicate slab position, on the side elevations, would improve these elevations by providing a simplicity of materials. He was of the opinion that the proposed changes would reduce the intrusiveness of the contrast in the slab edge within the design. He noted that because the side elevations would not be read as full elevations, he did not consider that the substitution of the metal cladding with brick at level 3 would add to the apparent bulk of the building.
During the hearing these matters were the subject of further testimony by the heritage experts. The experts gave consideration to the relationship of the proposed development to the adjoining buildings within Fitzroy Place. In particular, the experts gave consideration to the relationship of the proposed development to a block of terrace buildings to the west of the Subject Site and to the building at 5 Fitzroy Place.
Mr Phillips expressed his opinion that the terrace buildings did not provide a cue for the proposed development. He noted that, as mentioned above at [76], these buildings were rated as neutral in terms of the contribution to the Bourke Street North HCA.
Mr Phillips further noted that the building at 5 Fitzroy Place provided a stronger cue for the development as it demonstrated a greater level of authenticity compared with the terrace block. Mr Phillips noted that the frontage of the terraces to Fitzroy Place had been subject to significant change.
Mr Wang drew the Court's attention to the requirements of cl 2.11.3 of SDCP 2012, which provided that: "development is to respond to and complement heritage items and contributory buildings within a heritage conservation area, including streetscapes and lanes". He noted that, in his opinion, the proposed development did not satisfy this requirement.
Mr Wang was of the view that the plans for the proposed development should be further amended to respond to the design of the terrace block. He proposed that the western terraces in the proposed development could be lowered to provide an increased setback and to improve the relationship of the proposed development's western boundary to the terraces.
In response to the above points the Applicant reiterated that the terrace block had been identified as making a neutral contribution to the Bourke Street North HCA, and said that within Council's Bourke Street North HCA statement, Fitzroy Place had not received a rating to indicate that it held particular heritage significance.
The Applicant said that given the lack of a rating for Fitzroy Street, the neutral contribution of the adjoining terraces to the HCA, and the compliance of the proposed development within the height and FSR controls for the Subject Site the amended plans should be supported. The Applicant also said that the zoning of lots within Fitzroy Place, including the Subject Site, reflected Council's intent with respect to transitions in height between buildings in the street.
Having considered the differing opinions of the experts, and having reflected on the position of the subject site within Fitzroy Place as appreciated from the site inspection undertaken prior to the hearing, I prefer the opinion of Mr Phillips in relation to the potential impact of the proposed changes of building height, form and materials within the amended plans. A factor in determining this preference for Mr Phillip's opinion was its alignment with the position of the recommendations of the urban design experts, and its consistency with the assessment of the buildings in Fitzroy Place as conveyed in the Bourke St North HCA statement prepared by Council, and with Council's zoning, FSR and height controls for Fitzroy Place.
I also agree with the position of the Applicant that the proposed development, as represented in the amended plans, is consistent with the heritage characteristics of Fitzroy Place or the Bourke Street North HCA. I base this on: 1. the neutral contribution made by the terrace block to the west of the Subject Site; 2. the lack of a rating for Fitzroy Place in the Bourke St North HCA; and 3. the compliance of the proposed development with height and FSR controls in SLEP 2012.
I conclude that the proposed development would not introduce adverse impacts to the heritage values within the Bourke Street North HCA and specifically in relation to that portion of it within Fitzroy Place.
I further conclude that the proposed development is compatible with the provisions of the SDCP 2012 with respect to heritage matters.

Does the proposed development adequately address all other requirements under s 79(C)(1) of the EPA act.

Having considered the evidence before me, I am satisfied that I have addressed the matters that I am required to consider under s 79(c)(1) of the EP&A Act, including: 1. Consideration of all relevant planning instruments, including the provisions of SLEP 2012 and SEPP65, as well as; 2. the provisions of SDCP 2012; and 3. the submissions of the objectors both on-site and during the hearing.
I find that the proposed development at 8-10 Fitzroy Place, as proposed within the amended plans and as modified though my findings above in relation to urban design, planning and heritage is in the public interest.

Conclusion

I have concluded that the proposed development should receive consent based on a direction that the plans for the proposed development be amended so as to be consistent with the above findings in this judgment in relation to: 1. The recommendations of the urban design experts in their joint report and as recorded in this judgment above at [40], along with my findings in relation to planning and heritage contentions; and 2. The removal of one car space from the proposed development and the reallocation of this area of the site for use as deep soil planting so that the development is compliant with the requirements of the ADG for deep soil planting.

Directions

The parties are directed to prepare amended plans to reflect the decisions in this judgement, along with revised and agreed conditions of consent. These documents are to be filed with the Court by no later than 31 January 2017.
Following receipt of the amended plans and final conditions of consent I will make final orders in respect to this judgement.
Liberty to restore on 2 days' notice.
Orders will be made in chambers.

Addendum made on 31 January 2018

In accordance with the terms of directions in paragraphs 103-106 of my judgment of 8 December 2017 the parties provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows: Orders
The orders of the Court are: 1. The Applicant is granted leave to rely on amended plans; 2. The appeal is upheld; 3. Development consent is granted to development application D/2016/512 for demolition of an existing building and construction of a part 4/part 5 storey residential flat building with basement car parking at 8-10 Fitzroy Place, Surry Hills, subject to the conditions of consent annexed hereto as Annexure 'A'; 4. The exhibits are returned, with the exception of Exhibit 1 and C. …………………………. Michael Chilcott Commissioner Annexure A (349 KB, pdf)

Amendments 31 January 2018 - Addendum made on 31 January 2018 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: 31 January 2018

At a glance

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Judgment (16 paragraphs)

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Cases Cited (1)