Blackmore Design Group v Council of the City of Sydney

The proposal 4The proposed development provides for 18 units (including two adaptable units) in the existing warehouse (2 x 3 bedroom, 13 x 2 bedroom, 3 x studio), and six units including one adaptable unit (5 x 2 bedroom, 1 x 3 bedroom) in the infill building on Pitt Street. The proposal includes 22 car parking spaces (three for visitors, two accessible) in the basement underneath the existing warehouse, to be accessed by a driveway from Pitt Street into the interior of the site, with bicycle storage, and storage. 5The alterations to the warehouse building include creation of a central void, in which a lift and stairs are to be provided, with a central walkway with glass canopy. The separation between the eastern and western elements within the existing warehouse building is 9m, with terraces at ground floor level for three of the units on that level. On the ground floor, the two units on the eastern side have a terrace on their eastern side, in the area between the warehouse and the proposed infill building on Pitt Street. On the first and second floors, seven units on the eastern side of the building have terraces on their eastern side. On the third floor, the upper level of three units on the western side have small terraces. Part of the eastern wall of the warehouse within the central void is to be a green wall. The fenestration pattern on levels 1 and 2 of the eastern façade of the existing warehouse are to be restored to their original pattern, based on earlier photographs. 6Entry to the Pitt Street building is on the southern side of the building, accessed from Pitt Street by a walkway, which is set back 1m from the southern boundary, and which continues to provide pedestrian access to the warehouse building. The separation between the warehouse and infill buildings is 12m from the rear wall of the Pitt Street building to the external terrace of the two ground floor units on the eastern side of the existing warehouse, with 2m wide private landscaping along both the eastern side of the existing warehouse and the western side of the Pitt Street building. The western (rear) side of the infill building is set back further at first and second floor levels to increase the separation between the buildings to 14m. The area south of the walkway between the two buildings is to incorporate soft landscaping and not be accessible. The front wall of the new Pitt Street building is set back 2m from the alignment with No 56 to the south, and 2m forward of the alignment with No 50 to the north. The southern wall of the Pitt Street building is 3m from the side boundary with No 56 to the south. The first and second floor levels of the Pitt Street building are set back by 2m along the western side and at the south western corner. The two living room windows on the southern side of the first floor level of that building have privacy screens angled to avoid views to the courtyard of No 56; the bathroom window on that level is obscure glass; and there are no windows on the southern side at second floor level. 7The eastern elevation of the infill building on Pitt Street incorporates a continuous metal slat front fence, with an entry gate on the southern side, and openable gates to the driveway. The driveway on the northern side of the site is offset, and soft landscaping up to 1m is to be provided along the side of the driveway adjoining the northern boundary. Louvre panels to the first floor balconies as originally proposed have been deleted, and a vertical metal frame balustrade at first floor level is now proposed. The main roof is a gable roof running across the site, with a secondary hipped roof at the rear with a wide dormer.

Background to the proposal and the appeal 8In 2011 a development application for adaptive re-use of the warehouse building for residential use containing 36 apartments and the construction of an infill residential apartment building to Pitt Street containing 10 apartments, with parking for 31 vehicles, was refused by the Council. An appeal against that refusal was dismissed: Norfolk (Redfern) Pty Ltd v Sydney City Council [2012] NSWLEC 1012. 9Blackmore lodged the development application the subject of this appeal on 15 October 2012, which proposed conversion of the warehouse building to residential use containing 21 apartments and the construction of an infill residential apartment building on Pitt Street containing six apartments, with 26 car parking spaces. The development application was amended during the course of consideration by the Council, with amended plans provided on 10 July 2013 including a reduction in the total number of units to 24, an increase in the size of the William Street courtyard and an increase in the area of deep soil planting and landscaping. The development application was considered by the Council's Design Advisory Panel on 27 August 2013, and changes were recommended. 10The Class 1 appeal was lodged on 27 September 2013. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act), conducted by a different Commissioner, was held on site on 16 December 2013. The conciliation conference was subsequently terminated. On 16 April 2014 the matter was fixed for hearing on 10 and11 July 2014, with directions for provision of expert and other evidence. On 6 May 2014 the applicant was granted leave to rely on amended plans. 11On 9 July 2014 Ms Bolinger, owner of the adjoining property at 56 Pitt Street Redfern, filed a Notice of Motion seeking to be joined as a party to the proceedings, or in the alternative, to be granted leave to intervene and appear in the proceedings. Ms Bolinger had been granted leave to intervene in the earlier proceedings. Her application in relation to these proceedings was heard, and dismissed, on 10 July 2014: Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136. 12During the course of the hearing, and arising out of continuing joint conferencing by the parties' urban design, heritage and planning experts, amendments to the plans were proposed. Leave was granted to rely on the amended plans, and the experts addressed the amended plans in their oral evidence. At the conclusion of the hearing directions were made for the amended plans and proposed conditions of consent to be provided to immediately affected neighbours and for the Council to arrange a meeting for those neighbours to be briefed on the amended plans and conditions, with an opportunity for those neighbours to provide further submissions if they wished. Further written submissions were made, and the parties' experts provided supplementary reports, discussed below.

Issues 13The Council's Statement of Facts and Contentions (exhibit 1) raised eight contentions, being non compliance with the amenity and landscaping principles in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC); non compliance with the floor space ratio (FSR) controls in the Sydney Local Environmental Plan 2012 (the 2012 LEP); non compliance with parking controls in the 2012 LEP; that the proposal does not demonstrate design excellence as required by cl 6.21 of the 2012 LEP; adverse impact on the significance of the heritage conservation area and heritage items in the vicinity; that the proposal is an overdevelopment of the site, noting that a compliant development would be more likely to result in acceptable impacts to neighbouring properties; non compliance with the Sydney Development Control Plan 2012 (the 2012 DCP) provisions relating to heritage impact statement, deep soil landscaping, private open space, common open space, warehouse buildings, and Prince Alfred Park South; and the public interest by reference to amenity for intended occupants and precedent. 14The Council's position at the conclusion of the hearing was that, having regard to the amendments to the plans and the expert evidence, there were no longer any outstanding contentions and the Council offered no further evidence in opposition to the matter.

Evidence 15The site view on the morning of the first day of the hearing included evidence from seven objectors. Ms Bolinger gave evidence as to historical and heritage issues relating to amenity; the history of 56 Pitt Street and the grape vine planted 130-140 years ago; the reduction or removal of her amenity and views of the streetscape; and concerns as to loss of sunlight. The view included the courtyard inside her property along the northern side of her house, a grape vine growing the side wall of the house, the living areas along the northern side of the house, and a former laundry building at the rear of the property adjoining the warehouse on the subject site. Evidence was given on site by Mr Noble, owner of 67 William Street, as to concerns about excavation and subsidence, increase in traffic and inadequate parking, proposed garbage collection next to his property, proposed demolition of the wall adjoining his property, and impact on community amenity. The view included the courtyard at the rear of 67 William Street. Evidence was also given on site by the owners of 18 Pitt Street and 15 William Street, 58 Pitt Street, 60 William Street, 85 Pitt Street and 44 Pitt Street. That evidence addressed concerns as to the erosion of heritage in Redfern, the continuity of heritage items along Pitt Street; excavation in reactive clay soils and unknown impacts on drainage; the proposed location of the garbage bin room on William Street; the exceedance in floor space ratio (FSR); and difficulties with access on William Street. The view included a view of William Street and Pitt Street, and the basement of the existing warehouse building on William Street. The documentary evidence includes copies of submissions made to the Council during the course of its assessment of the development application (exhibit 2). 16The applicant relied on expert evidence provided by Mr Robert Staas (heritage), Mr Peter Cantrill (urban design) and Ms Larissa Brennan (planning). The Council relied on expert evidence provided by Ms Jennifer Hill (heritage), Mr Brian McDonald (urban design) and Mr Mark Shanahan (planning). The experts provided joint reports (exhibits 3 and 4). The expert witnesses gave oral evidence relating to the amended plans on the second day of the hearing. After the hearing Ms Brennan and Mr Shanahan provided supplementary joint reports in response to the amended plans (exhibits 8,9), and Ms Hill provided a supplementary report (exhibit 10). 17As noted above, at the conclusion of the hearing directions were made relating to provision of the amended plans and conditions to immediately affected neighbours. Additional written submissions were received from Ms Bolinger, Mr and Mrs Noble, and Mr Touma, owner of 50 Pitt Street Redfern, who maintained their objection to the proposed development. Ms Bolinger stated her concerns as to solar, privacy, acoustic impacts and reduction of amenity; intensification of use from the former limited use in working hours; concentration of traffic and parking in Pitt Street; exceedance of FSR; absence of a cumulative impact study for parking and traffic; proposal is oversized, lacks adequate setbacks; impact on No 56 which is a substantial, original, intact grand terrace of outstanding proportions forming an integral part of an individually-listed group of terraces; and bulk and scale of the added apartment building. Mr and Mrs Noble stated concerns as to detrimental effects structurally on their property from the excavation plans; detrimental impact on the amenity of the neighbourhood by overcrowding and inadequate car parking; adverse impact from garbage collection on William Street next to their front door; and interference with their plans to add a third level to their home by the proposal to demolish part of the north boundary wall above their property. Mr Touma stated concerns that the proposed setback of the Pitt Street infill is not in keeping with his home, being 3m in front; detrimental impact from noise generated from vehicles on the driveway adjoining his property; noise of roller shutter doors; visual impact of the infill; exceedance of FSR; impact of the extent of excavation; and privacy impacts from the front balconies. The Council also received 129 copies of a form letter, which included objections based on increased traffic congestion, garbage collection, delicate heritage fabric, privacy, heritage concerns and potential damage to neighbouring sites caused by underground excavations; and compliance with Council planning controls and the legislation. The planners had copies of these submissions and the form letters (exhibit 11) when they prepared their supplementary report dated 15 September 2014 (exhibit 8).

Planning controls 18The development application was lodged on 15 October 2012. At that date the South Sydney Local Environmental Plan 1998 (the 1998 LEP) was in force. The applicable development control plan was South Sydney Development Control Plan 1997: Urban Design (the 1997 DCP), which contained controls for height (6m) and FSR (1:1). The City of Sydney Heritage DCP 2006 (HDCP) applied to the site. 19The Sydney Local Environmental Plan 2012 came into force on 14 December 2012, and includes a savings provision in cl 1.8A: 1.8A Savings provision relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. ... 20The 2012 LEP includes development standards for height (cl 4.3, 12m) and FSR (cl 4.4, 1.25:1). The Sydney Development Control Plan 2012 (the 2012 DCP) also came into force on 14 December 2012, and by cl 1.6 repealed the 1997 DCP and the HDCP. Clause 1.1 of the 2012 DCP states that its purpose is "to supplement the Sydney Local Environmental Plan 2012 and provide more detailed provisions to guide development". There is no applicable savings or transitional provision in the 2012 DCP. 21The parties approached the planning controls on the basis that applying cl 1.8A, the 2012 LEP is a relevant consideration as a draft local environmental plan; and that while the intent of the 2012 DCP is to provide guidance for development under the 2012 LEP, because the 1997 DCP and HDCP have been repealed the provisions of the 2012 DCP are in force and apply to the site. To the extent that any provision of the 2012 DCP might be incompatible or inconsistent with a provision of the 1998 LEP, applying s 74C(5) of the Act it would be void and of no effect. 22Under the 1998 LEP the site is zoned 2(b) Residential (Medium Density), and the proposed development is permissible with consent. Clause 10 of the 1998 LEP provides that consent must not be granted to the carrying out of development "...unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located". The objectives of the 2(b) zone are: (a) to enhance the amenity of existing medium density residential areas, and (b) to nominate those localities which are primarily residential and where future residential development is likely to occur, and (c) to ensure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (d) to provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (e) to facilitate a higher density and diverse forms of residential development on appropriate sites, and (f) to facilitate opportunities for small scale local business activity which is compatible with existing residential areas. 23Under the 2012 LEP the site is zoned R1 General Residential. The objectives of the zone, to which regard must be had under cl 2.3(2), 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. 24The 1997 DCP contained FSR controls. The repeal of the 1997 DCP means that the only presently applicable FSR controls for the site are those provided in the 2012 LEP, which specifies at cl 4.4 a maximum FSR of 1.25:1. Clause 4.6 of the 2012 LEP enables development consent to be granted notwithstanding a contravention of the FSR development standard. 25The site is located in the Redfern Estate Conservation Area, presently identified in Sch 5 of the 2012 LEP. The existing warehouse building is identified as a contributory item, and the concrete hard stand is identified as a detracting item. The buildings to either side of the present car parking area are listed as heritage items in the 2012 LEP. 26Section 3.9.7 of the 2012 DCP provides the following for contributory items: (2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: (a) respect significant original or characteristic built form; (b) respect significant traditional or characteristic subdivision patterns; (c) retain significant fabric; (d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing; (e) remove unsympathetic alterations and additions, including inappropriate building elements; (f) use appropriate materials, finishes and colours; and (g) respect the pattern, style and dimensions of original windows and doors. 27Section 3.9.9 addresses detracting buildings: (1) Development on sites containing detracting buildings is to improve the contribution of the site to the character of the heritage conservation area. (2) Alterations and additions to, or redevelopment of, detracting buildings are to: (a) remove inappropriate elements or features that are intrusive to the heritage significance of the heritage conservation area; and (b) respect the prevailing character of the area and street in terms of bulk, form, scale and height. 28Clause 5.1.8 of the 2012 DCP provides: 5.1.8 Warehouse Buildings Objective (a) Conserve and enhance significant warehouses, including warehouses with a courtyard. Provisions (1) New development must preserve the fundamental configuration of warehouse buildings and courtyards. ... (6) Where necessary, the selective adaptation of original fabric and hardware is acceptable to ensure elective function and safety. For example, the use of contemporary paving material over original bluestone setts is permitted provided that it is reversible and limited to necessary trafficable areas. (7) Original vertically aligned openings to courtyards are to be preserved, and later unsympathetic openings replaced with reconstructed original or similarly proportioned openings. 29Section 2.13.8 provides the Locality Statement for Prince Alfred Park South, which includes the following principle: (f) Retain, restore and adaptively re-use heritage warehouse buildings to enliven the streetscape. 30SEPP 65 applies to the proposed development. Principle 6: Landscaping provides that "landscape design should optimise useability, privacy and social opportunity, equitable access and respect for neighbours' amenity, and provide for practical establishment and long term management." Principle 7: Amenity provides: Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 31The Residential Flat Design Code (RFDC) includes rules of thumb for landscaped area (25 percent of site area); unit sizes; common open space (25 percent of site); and building separation (12m for buildings up to four storeys).

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.

Conclusion 55Based on the findings above, I am satisfied that the proposed development complies with the landscaped area requirements of the RFDC and the DCP, and provides appropriate landscaping in terms of the public domain with landscaped strips to the north and south at the street and a landscaped front garden to Pitt Street, and appropriate landscaping adjacent to the courtyard of 56 Pitt Street to maintain privacy and solar access in winter. I am satisfied based on the agreed expert evidence that the proposed development provides appropriate unit sizes to contribute to housing affordability, consistent with the aim in cl 1.2(2)(e) of the 2012 LEP to provide a range of appropriately located housing including affordable housing. The courtyard between the warehouse and infill buildings meets the numerical separation requirements of the RFDC. While the internal void in the warehouse building does not, based on the expert evidence I am satisfied that with the reconfiguration of the stairs, lowering of the soil level and provision of screens, the concerns raised as to useability of the space are addressed and that this aspect of the design is consistent with the objectives of the RFDC. The proposed development meets the requirement under the RFDC for 75 percent of units to have private open space. On that basis, I accept Blackmore's submission that all of the matters raised in relation to compliance with the landscape and amenity principles in SEPP 65 are appropriately addressed. For the reasons stated above, I am satisfied that while the proposed development exceeds the numerical FSR standard that would apply if the 2012 LEP applied, the form of the development is appropriate in circumstances where the objectives of the FSR control are met, and the exceedance is appropriate where the detracting element is removed and the contributory item is enhanced without unacceptable impacts on surrounding properties and the locality. Based on the expert evidence, I am satisfied that the proposed development has an acceptable impact on the significance of the heritage conservation area and the heritage items in the vicinity, and in particular that the relevant provisions for retention, restoration and adaptive re-use of the warehouse building in the DCP are met. Having regard to the matters raised by the Council in its contentions and those raised by the objectors, I am satisfied that the development as now proposed, which includes the amendments intended to address concerns relating to privacy, solar access, and impact on heritage significance, is consistent with the objectives for the 2(b) Residential (Medium Density) zone under the 1998 LEP, in particular objective (c) to ensure that the building form is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents, and objective (e) to facilitate a higher density and diverse forms of development on appropriate sites. I am also satisfied that the proposed development is consistent with the objectives of the R1 General Residential zone under the 2012 LEP, in particular that it provides for the housing needs of the community, with a variety of housing types and densities. The proposed development should be approved subject to the conditions as agreed between the parties. 56The orders of the Court are:

1. The appeal is upheld.
2. Development application D/2012/1584 for the conversion of an existing warehouse building addressing William Street Redfern to residential use and construction of a new apartment building addressing Pitt Street Redfern with shared basement parking at 52-54 Pitt Street Redfern is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 1, 12, C, G and J. Linda Pearson 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: 03 October 2014