Consideration
32While not raised as a contention, the parties were asked to clarify the timing of the lodgement of the Class 1 appeal. The parties were in agreement that the appeal had been lodged within the six month period specified by s 97(1)(b) of the Act. The Statement of Facts and Contentions includes a chronology of the Council's consideration of the development application, which included provision on 10 July 2013 of an amended set of plans responding to issues raised by the Council. It was not in dispute that the amended plans submitted on 10 July 2013 were accepted by the Council as an amendment pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation), and were the subject of an assessment undertaken by Council officers (exhibit 5). I accept the parties' submission that the time for appeal against the deemed refusal ran from the date of the Council's acceptance of the amended application, as that was when the application was lodged in its final form, rather than the date of lodgement of the original development application: Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA 373, applying Integral Energy Pty Ltd v Blue Mountains City Council [1998] NSWLEC 284. While there have been amendments to the Act and to the Regulation since those decisions, those amendments would not appear to require a different approach. I am satisfied that the appeal was lodged within time.
33I agree with the approach adopted by the parties to the application of the planning controls. SEPP 65 applies, and cl 30 requires consideration of the design quality of the proposed development when evaluated in accordance with the design quality principles, and the RFDC. The applicable local environmental plan is the 1998 LEP, and the 2012 LEP is to be taken into account as if exhibited but not commenced. While the proposed development is not required to strictly comply with the relevant provisions of the 2012 LEP, the Court should have regard to the aims and objectives of the 2012 LEP in considering whether the proposed development is not antipathetic to its broader objectives: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279. The 1997 DCP and the HDCP have been repealed without a savings provision and accordingly do not apply to the site, and the 2012 DCP applies to the site except to the extent that it is inconsistent or incompatible with the 1998 LEP.
34In terms of the maximum FSR permitted for the site, the former control of 1:1 no longer applies with the repeal of the 1997 DCP. Clause 4.4 of the 2012 LEP specifies 1.25:1. Applying cl 1.8A of the 2012 LEP, cl 4.4 is a relevant consideration, however that provision, and cl 4.6 of the 2012 LEP which would permit a departure from the development standard provided the matters specified in cl 4.6(3), (4) and (5) are satisfied, do not strictly apply. The final version of the plans incorporating the changes agreed by the experts, filed on 20 August 2014 (exhibit J), shows an FSR of 1.5:1, which exceeds both the former DCP control of 1:1 and the present 2012 LEP control of 1.25:1.
35I agree with Blackmore that it is relevant in assessment of whether the proposed FSR is appropriate that the proposed development includes retention of the warehouse, as a contributory item, and removal of the detracting car park area. The heritage experts agreed that it is the eastern and western facades of the warehouse building that are important; and that the eastern façade of the warehouse has been modified by the addition of arched openings to the windows, rendering of the façade, replacement of original timber window frames with metal frames, and the addition of the glazed entry (exhibit 3, p4). They agreed that the introduction of the proposed light well does not have any visual impact when viewed from the public domain; and that the minor modifications to openings on the western façade are generally sympathetic and acceptable reflecting traditional warehouse character (exhibit 3, p5). In oral evidence Ms Hill agreed that the addition of two windows in the gable end of the upper floor of the eastern façade of the warehouse, intended to provide light and ventilation to bedrooms, is appropriate. I accept the agreed evidence of the heritage experts that the proposal retains the warehouse building with appropriate restoration of the eastern façade and with limited removal of brick piers and basement walls; and on that basis, the retention, restoration and adaptive re-use of the warehouse complies with the requirements of sections 3.9.7, 3.9.9 and 5.1.8 of the DCP and with the Prince Alfred Park South locality statement.
36The planning experts disagreed as to what the existing FSR is of the warehouse building, being either 1.2:1 or 1.3:1, depending on whether corridor walls further than 2m from the opening are included in calculation of gross floor area (exhibit 4, p 8). The Council staff assessing the development application considered the FSR of the warehouse to be 1.3:1 (exhibit 5, paragraph 40). Whether the existing FSR is 1.2:1 or 1.3:1, it is either close to, or already exceeds the 2012 LEP control; however the creation of the internal void will reduce the FSR. The Council assessment report noted that the floorspace removed by the creation of the void would be redistributed to the infill building on Pitt Street, some to be provided in the form of an attic. That was also the approach adopted by Ms Hill in her oral evidence.
37I accept Blackmore's submission that the bulk and scale of the warehouse is determined by its existence and the desire of the planning controls to retain its intact fabric and re-use the building, and remove the carpark, and that the bulk and scale of the western end of the site is predetermined as any development would essentially retain the bulk and scale of the warehouse. It was common ground between the parties that an infill building is an appropriate response to overcoming the detracting carpark, however the form of the infill building at the eastern part of the site has been the issue. Blackmore submitted that the relevant factors to be balanced in considering the outcome for the eastern part of the site are the streetscape, the desire to be able to see the warehouse building from Pitt Street, and the impact on neighbouring properties. I agree that those are relevant factors in the context of this proposed development when considered against the objectives of the FSR control in cl 4.4 and the zone objectives, and in the context of the applicable heritage provisions.
38The heritage experts agreed that the site of 52-54 Pitt Street was formerly occupied by a house of two storeys plus attic that aligned to the terraces at the north, and was built close to the southern boundary and had a driveway on the north adjoining 50 Pitt Street; and that that house was demolished in about 1958 and the car parking forecourt was established. They agreed that a contemporary designed two storey plus attic building is acceptable for that part of the site, that reconstruction of the previous building occupying this part of the site is not required, and that a reproduction infill terrace with Victorian detailing is inappropriate (exhibit 3, p5).
39In her contribution to the joint report Ms Hill stated that the infill building should not be built boundary to boundary. In her opinion the design then before the Court displayed uncharacteristic setbacks, façade treatment, dormer treatment, verandah depth and detail, car parking access and landscaping and fencing to Pitt Street (exhibit 3, p 12, 13). In oral evidence addressing the proposed amendments to the plans, Ms Hill's position was that the provision of the setback on the southern boundary achieves visibility of the façade of No 56 and down into the back of the site and visibility of the contributory item at the rear of the property, and that the treatment of the first floor balconies, greater compliance with the alignment of No 50 and alignment with No 56, treatment of the front fence and access to the garage including provision of a flat driveway into the interior of the site, mean that the heritage impact on adjacent properties has been addressed. In her supplementary statement of evidence dated 19 September 2014 following review of the amended plans (exhibit 10), Ms Hill states that she has reviewed the information provided as part of the readvertising, and the submissions received include material previously submitted in response to an earlier and larger scheme which had a greater heritage impact, and no new issues had been raised as part of the submission that had not been previously raised. I accept that evidence.
40In terms of streetscape, Mr McDonald's opinion was that a well proportioned contemporary design responding to the local context was acceptable on the Pitt Street frontage, and that a free standing building such as the house that was on the site until the 1950s could produce a satisfactory streetscape and heritage outcome. In their joint report, he and Mr Cantrill included recommendations for changes to the Pitt Street façade to achieve a better contextual fit (exhibit 4, p 27). The plans in their amended form incorporate those recommendations, and provide on the Pitt Street façade a metal frame vertical balustrade instead of the originally proposed glass balustrade, removal of proposed louvre panels on the first floor balconies and masonry planter walls, modification of the central element, redesign of the roof form, and redesign of the boundary fence and driveway gates to recess the entry to the basement car park. I accept the agreed oral evidence of the urban design and planning experts that the amended plans provide a form of development for the infill building that is appropriate in the streetscape context. The proposed conditions include a requirement that there be an archaeological report relating to the footings of the earlier original house and relics (condition 63).
41All the experts agreed in oral evidence that with the inclusion of the 3m side setback to 56 Pitt Street, the warehouse building and the façade of 56 Pitt Street can be viewed from Pitt Street (exhibit 6).
42A further factor in considering whether the proposed FSR is appropriate is the impact of the proposed development on neighbouring properties. The Council officer who initially assessed the development application noted (exhibit 5, paragraph 64) that the orientation of the site is such that shadows from the new infill building will not affect properties to the north, east or west of the site, and that the modifications to the existing warehouse building are contained in the existing building envelope which means that there will be no additional overshadowing from this element of the proposed development. The assessment report then considered No 56 Pitt Street, noting (at paragraph 66) that this property is unusual in that the majority of windows are located on the northern side of the house, effectively borrowing amenity from the site, and that the absence of a building in this uncharacteristic space has resulted in the enjoyment of northern sunlight by this neighbour for a number of years. The report noted that the main rear yard area of No 56 is already significantly overshadowed by the existing warehouse building and the boundary fence, and the secondary area of open space (the courtyard area in the centre of the site) is also largely overshadowed by the existing solid boundary fence and dense landscaping. The report noted (at paragraph 69) that the 2012 DCP seeks to retain a minimum of two hours sunlight to habitable rooms and areas of open space between 9.00am and 3.00pm on 21 June, and that the 2012 DCP acknowledges (at cl 4.1.3.1(2)) that it is not possible to protect side windows and those separated from a boundary by a passageway. At paragraph 73 the officer noted that three of the four key openings on the northern façade serving the kitchen and dining areas of No 56 would exceed the minimum control, and the fourth (most easterly) window would not, however, as the openings all serve the same space with no dividing walls between, sunlight would reach the kitchen and dining areas for at least two hours per day. The officer was of the opinion that the development in the form as then proposed complied with the DCP control.
43The impact of the infill building as shown on the amended plans on solar access and privacy for No 56 Pitt Street was the subject of detailed oral evidence by the urban design experts. The southern elevation of the infill building is set back 3m from the side boundary with 56 Pitt Street and the eastern elevation aligns with 56 Pitt Street. There is a set back of a further 2m at the south western corner at the first floor level, so that the upper level on the western side of the infill building is separated from the existing warehouse building by 14m. I accept the evidence of Mr Cantrill that the purpose of the setback is to minimise overlooking and solar access impacts on the courtyard area of No 56 Pitt Street. The windows on the first floor level of the infill building include angled privacy screens and there are no windows on the southern elevation at second floor level. The plans provide for the area south of the walkway between the infill building and the warehouse to incorporate soft landscaping and not be accessible.
44In oral evidence the urban design experts agreed that the development in the form now proposed would increase solar access to the windows and openings on to the courtyard when compared with the original plans. The solar access analysis diagrams provided with the final version of the amended plans (exhibit K) show the impact on 22 June on the windows and openings on the northern side of No 56 opening on to the courtyard, and confirm that there is no shadow to the top floor windows on the northern side of 56 Pitt Street until 1.45pm when the existing warehouse building casts shadow; and that the shadow cast by the infill building will move off the two of the lower level windows at the west by 11am, leaving all in sunlight by 12.30pm; and that from 1.30pm shadow is cast by the existing warehouse building. In their review of the amended plans and the additional submissions received from the objectors (exhibit 8), the planning experts agreed that the solar access to 56 Pitt Street is appropriate and complies with the Council controls, and that the two windows and glass door on the northern side of 56 Pitt Street will retain in excess of two hours solar access between 9am to 3pm on 21 June. I accept that evidence.
45In terms of other impacts on 56 Pitt Street of the development in the form now proposed, the planning experts agreed (exhibit 8) that the proposed alignment of the infill building retains the presentation of No 56 as an end terrace, and that the development will have no adverse impact on the laundry house and housekeepers office at the rear of 56 Pitt Street. They referred to the Council report which did not raise concern as to the impact of the development on the grape vine, and noted that solar access is now increased. I accept that evidence.
46The objectives of the FSR controls in the 2012 LEP are stated at cl 4.4(1):
(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,
(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,
(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,
(d) to 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.
47Of particular importance in the circumstances of this proposal is objective (d). The Council officer assessing the development application was of the opinion that the proposed development complied with the objectives of the FSR development standard (exhibit 5, paragraph 41). In her contribution to the joint report, Ms Brennan's opinion was that the form and scale of the Pitt Street building is appropriate and reflective of the character of the area and will complete the streetscape and contribute to the consistent building character with minimal environmental impacts, that the adaptive re-use of the warehouse building is an effective use of the building that currently exceeds the permitted FSR, that traffic generation as a result of the variation to the control is negligible and below the traffic generation of the existing commercial use, and that the development achieves compliance with other key controls notwithstanding the variation to the FSR control (exhibit 4, p24). In her oral evidence Ms Brennan's opinion was that the further amendments to the plans improve the amenity to No 56, and achieves the desired character of the locality in particular through adaptive re-use of the warehouse building. Mr Shanahan agreed, and stated that in his opinion the proposal is consistent with the objectives of the zone both under the 1998 LEP and the 2012 LEP. In their supplementary report (exhibit 8), Ms Brennan and Mr Shanahan noted that the height of the Pitt Street building is consistent with adjoining terraces and with the scale of buildings in the street, and the depth is significantly less than neighbouring properties. They agreed that there is no loss of privacy for 50 Pitt Street, and that 50 Pitt Street will retain the majority of its existing views to the street. I accept the agreed expert evidence.
48While there is an exceedance of the FSR that would apply if the 2012 LEP applied to assessment of this application, I am satisfied that the exceedance is appropriate in the particular circumstances of the case where the existing warehouse building is to be retained, consistent with the Locality Statement for Prince Alfred Park South and cl 5.1.8 of the 2012 DCP, and the detracting element is to be removed; and where the proposed infill building is consistent in height and scale with the adjoining terraces and other buildings in the street, while providing an infill building that is an appropriate fit with the heritage streetscape and with no unacceptable physical impacts on the adjoining properties or the locality. I am satisfied that the proposed development is consistent with the objectives of the FSR control in the 2012 LEP.
49Turning to the other issues identified in the Council's contentions, the first issue relates to compliance with SEPP 65 and the RFDC. There was initially a dispute between the parties' experts as to the area of common open space, Mr Cantrill and Ms Brennan agreeing that it was 23-25 percent, and Mr McDonald stating that it was 22.15sqm (exhibit 4). In oral evidence, all the experts agreed that common open space on the amended plans is at least 30 percent. That complies with the RFDC requirement for a minimum common open space area of 25 percent. Mr McDonald was satisfied that the most recent amendments to the plans, with the relocation of the stairs and lift and a lowering of the ground level in the internal void in the warehouse building that the common open space is useable. The RFDC requires that 25 percent of the common open space area be deep soil: the experts agreed (exhibit 4, p 7) that the proposal meets this requirement, providing 70.8-74.4 percent of deep soil zones. It was common ground that the unit sizes comply with the RFDC rule of thumb recommended to contribute to housing affordability (exhibit 4, p 6). The planning experts agreed (exhibit 9) that the diagrams in the RFDC are the appropriate method of measuring unit areas, and noted that a relevant consideration in this context is the ceiling heights of the units on the ground and first floor of the warehouse building (4.01m and 3.78m) which contribute to a sense of spaciousness. On the basis of this evidence, which I accept, I agree with Blackmore that in this context, the location of the proposed development close to shops, services, recreational uses and public transport means that the proposed development is appropriately located and affordable, consistent with aim (e) of the 2012 LEP.
50The RFDC recommends a 12m separation between bedroom and bedroom, and a separation of 9m between bedroom and non habitable rooms such as bathrooms. The proposed development complies between the warehouse and the infill buildings, with 12m separation at ground level and 14m at the upper levels. The separation across the central void in the warehouse is 9m. Mr Cantrill's evidence was that in contrast with the courtyard area which provides an area for passive recreation and deep soil planting, the primary purpose of the void is to provide natural ventilation and daylight to those units whose primary orientation is away from the void, and also to provide a pleasant outlook; and that both purposes meet the objectives of the RFDC. Mr McDonald was concerned about the useability of the space and overlooking problems because of the configuration of the stairs and lift and the level of the soil. The amended plans have reduced the soil level to meet that of the adjoining terraces, and repositioned the stairs and lifts, and translucent privacy screens are now incorporated in the stairs. The experts agreed in oral evidence that with these changes, an appropriate level of privacy is achieved. I accept that evidence, and accept Blackmore's submission that in the context where the proposal is an adaptive re-use of the existing warehouse building consistent with heritage controls, with the consequent tension between retaining and removing fabric as part of the adaptation and an understanding that any proposal to increase the separation would lead to removal of more fabric, the non-compliance with the RFDC recommendation would not be a basis for refusal of the application.
51The RFDC requires that 25 percent of the common open space be deep soil, and the 2012 DCP requires (at 4.2.3.6) that 10 percent of the site area be deep soil. The experts agreed that the proposed development exceeds the RFDC requirement, at either 74.4 percent (on the applicant's interpretation) or 70.8 percent (on the Council's interpretation) (exhibit 4, p 7); and in oral evidence agreed that based on the amended plans the DCP requirement is met. That conclusion was confirmed on their review of the amended plans (exhibit 8). I accept that evidence.
52The experts addressed the issues of provision of private open space, and agreed that the proposed development meets the DCP requirement for 75 percent of the units to have private open space. Mr Cantrill's evidence was that while some of the areas are less than the 10sqm required under the DCP, including W9 and W11 which are at 9sqm and W13 which is 6sqm, all the private open space areas are useable and provide adequate amenity; the other experts did not disagree. I accept the agreed position of the experts.
53The experts considered the garbage room plan, noting that the proposed conditions require that garbage bins be kept within the garbage room and removed on collection. The experts accepted that the door is close to 67 William Street, however they agreed that the door cannot be moved further away because of the slope of the street and the need to retain clearance or door height. I accept the agreed evidence of the planners (exhibit 8) that the increase in size of the garbage room would ensure sufficient space for the required number of garbage bins and bulky waste, and that the method of garbage collection is appropriate and meets Council's garbage collection requirements. Proposed condition 29 specifies the hours for collection of waste and recycling and states that garbage and recycling cannot be placed on the street for collection.
54Turning to consideration of additional issues raised by objectors in their submissions to Council and in the course of the hearing, and after the hearing, the proposed parking provision complies with the provisions of the 2012 LEP under which the maximum number of car parking spaces is 22 (cl 7.1). Proposed conditions 20 and 21 restrict access to the Council's on-street resident parking scheme. I accept the agreed evidence of the planners (exhibit 8) that the location and design of the vehicular entry is appropriate, as the carpark roller door is setback 600mm from the boundary with soft landscaping between the driveway and the northern boundary to 50 Pitt Street, and the two skins of brickwork and a projecting nib wall between the roller door and habitable rooms of 50 Pitt Street will mitigate noise impact on 50 Pitt Street. I accept the agreed evidence of the planners (exhibit 8) that the impact of the proposed development on the development potential of 67 William Street is minimal, as the opening on the northern side of the William Street building is retained at a height of 10m above ground level to enable the adjacent terrace to be developed to the maximum height permitted under the 2012 LEP of 9m; and that there is no unreasonable loss of privacy as the rear courtyard to 67 William Street is largely obscured by the building on 67 William Street. The issue of impact of excavation on neighbouring properties is addressed in proposed conditions 52, 53, 54, and 55, which require a site specific geotechnical report and a site specific noise management plan before the issue of a Construction Certificate; specify the details of proposed demolition excavation and construction management; and require a dilapidation report for all adjacent sites before and on completion of excavation/demolition. Proposed condition 84 specifies requirements for protection of street trees.