Cracknell & Lonergan Architects Pty Ltd v Leichhardt Council

CASES CITED: Luna Moon Pty Limited v Leichhardt Council (2005) NSWLEC 566; Telstra Corp Limited v Hornsby Shire Council (2006) NSWLEC 133

APPLICANT Mr P. Tomasetti, barrister SOLICITORS D.C. Baley & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr G. Green, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11412 of 2005 Cracknell Lonergan Architects Pty Limited v Leichhardt Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application No. D/205/427 by Leichhardt Council (the council) for the re-use of an existing non-residential building for residential purposes at 26 Lords Road, Leichhardt (the site).

The site 2 The site consists of Lot 1 in DP 215387. It is irregular in shape and has a boundary to Lords Road of 16.22 m and northern and southern boundary lengths of 30.2 and 24.6 m respectively. The eastern boundary has a length of 15.24 m giving a total site area of 418 sq m.

3 The site adjoins single residential development on the western and southern boundaries and a small portion of the eastern boundary. The remainder of the eastern boundary adjoins an industrial building, which is currently used as a smash repair business. Opposite and to the north-west of the site at 67-73 Lords Road is a large industrial development.

4 The site presently accommodates a part one and part two-storey detached masonry industrial building constructed around 1962. The second storey of the building is located in the front or northern portion of the site with the remaining southern portion consisting of a single storey construction. The building occupies most of the site but is set back from the western boundary by 650 mm, the southern boundary by 750 mm and the eastern boundary by 200 mm.

The proposal 5 The proposed works involve: 1. Demolition of the existing floor, roof and mezzanine level and the retention of four external walls. 2. Excavation for the provision of a basement carpark accessed via Lords Road with parking for 7 vehicles, storage and on site detention. 3. Construction of 5 x 2 bedroom residential dwellings with access to a common pathway within the building provided at the location of the existing entrance on Lords Road. Access to each individual unit will be obtained from the pathway. 4. Each unit will provide a kitchen, combined lounge and dining room and a laundry (with the exception of unit 1) plus a courtyard measuring 3.8 m x 3 m on the ground floor. Two bedrooms, two bathrooms (and for unit 1 a laundry within the main bathroom) are provided on the first floor. 6 The units will be provided with ground level courtyards on the western side between the new wall of the dwellings and the retained western wall of the existing building. The retained western wall will have existing openings widened and a 1.6 m high privacy screen will be provided in the openings.

Relevant planning controls 7 The site is within the Residential zone under Leichhardt LEP 2000 (LEP 2000). The site is located within the vicinity of an item of environmental heritage identified in Schedule 2 of LEP 2000 being the Kegworth Public School however no heritage issues were raised by the council.

8 Clause 19(5) of LEP 2000 provides requirements for building conservation and adaption. The clause states:

( 5) Building Conservations and Adaption : Irrespective of subclauses (2) and (3), consent may be granted to alterations to a non-residential building in the Residential Zone so as to allow it to be used for a residential use if the consent authority is satisfied that: a) the building is substantially retained, which means the building must be structurally capable of conversion without the need for the replacement of most of the structure and b) any increase in floor space is contained generally within the envelope of the existing building and c) the alteration of the building will meet the ecologically sustainable development objectives and controls of the plan and d) the alterations have been designed with adequate provision for the intended occupants and those in the vicinity of the side of the proposed development in terms of amenity and e) the appearance of the building after the alterations have been carried out, will integrate into and enhance the streetscape and f) the alteration of the building will provide useable private outdoor recreation space for and directly adjoining each dwelling and g) the conversion of the building will provide adequate accessible and secure carparking spaces and bicycle storage facilities for residents of and visitors to the building and h) where the building is a heritage item or in the vicinity of a heritage item, or within a conservation area, the conversion of the building meets the heritage objectives and controls of the plan. 9 Clause 13 provides general objectives. Clause 13(1) provides the general objective for ecologically sustainable development. It states:

(1) The general objective for ecologically sustainable development is to encourage the incorporation of the principles of ecologically sustainable development in the design and management of the built and natural environment to: a) provide for the preservation of natural resources to ensure their availability for the benefit of future generations and

b) minimise negative impacts of urban development on the natural, social, physical and historical environment and

c) maintain and enhance the quality of life both now and for the future."

10 Schedule 3 of LEP 2000 provides a glossary where ecologically sustainable development means: ….development which uses, conserves and enhances the community's resources so that ecological processes on which life depends are maintained and the total quality of life now and in the future can be increased .

11 Clause 19(2) provides requirements for maximum floor space ratio (FSR) and cl 19(3) provides requirements for minimum landscaped area in certain locations. These requirements do not apply to developments that satisfy the requirements in cl 19(5).

The issues 12 The council filed a Statement of Issues that contained 14 separate issues, although the issues relating to diverse housing (Issue 4), storm water (Issue 9); BCA requirements (Issue 10); adequacy of information (Issue 11); waste storage (Issue 13) and site contamination (Issue 14) were not pressed by the council following further information or additional conditions of consent. The remaining issues can be grouped into the following areas: 1. Whether the proposal satisfies the requirements of cl 19(5) (Issues 1, 2, 3 and 5) 2. Whether the proposed driveway is acceptable (Issue 8). 3. Whether the proposed development has unacceptable internal amenity impacts (Issue 7). 4. Whether the proposed development creates unacceptable amenity impacts on adjoining properties (Issues 6 and 12).

13 Mr Gary Shiels was the Court-appointed expert to deal with town planning and traffic issues.

Clause 19(5) 14 On the issue of whether the proposal satisfies the requirements in cl 19(5), the parties disagreed in all but the requirements in cl 19(5)(h). In summary, the council maintained that the proposal does not constitute alterations to a non-residential building. The proposal, in effect is for a new residential building set inside the external retained walls of the existing building. The applicant disagreed and was of the view that the proposal addresses the requirements in cl 19(5) and was a form of development clearly anticipated by the clause. 15 As each of the requirements in cl 19(5) have to be satisfied to gain the benefit of the clause, I will deal with each of the sub-clauses individually, as did Mr Shiels. Cl 19(5)(a): the building is substantially retained, which means the building must be structurally capable of conversion without the need for the replacement of most of the structure and 16 The council argued that the sub-section was not satisfied as most of the structure was not retained. It maintained that based on the area of the existing surfaces of the building to be retained, 70% of the existing structure is to be removed. Mr Shiels states that based on the details provided from the applicant's structural engineer and architect, the retention of the external walls would be sufficient to satisfy cl 19(5)(a).

17 I concur with the conclusions of Mr Shiels. The council's assessment that 70% of the surface area of the building will be removed, may well be correct, however, it is an overly simplistic way of addressing the matter in cl 19(5)(a). Nott C in Luna Moon Pty Limited v Leichhardt Council (2005) NSWLEC 566 (at 23) addresses this issue and correctly, in my view, states that different elements of a building are more valuable if retained than others. In this case the roof, floor and mezzanine areas are to be removed while the external walls are to be retained. The roof currently consists of asbestos panels and would need to be replaced in any event. The floor is timber and would also need to be replaced with any re-development of the building. The mezzanine is relatively small and is largely unsuitable for adaption to residential use. Clearly, the outside walls are the dominant component of the building and represent its form when viewed from the street and adjoining properties. If the concept in Luna Moon Pty Limited v Leichhardt Council (2005) NSWLEC 566 is adopted, the walls of the building would be given far greater value or a higher index than the components to be removed.

18 In my view, the council's argument that the proposal is simply a building within the existing walls must also be rejected. Cl 19(5) provides the opportunity for building conversion and adaption. How this is undertaken is dependent, to a large extent, on the form of the existing building. In this case, the building occupies virtually all the site and with the other obligations in cl 19(5) to provide secure carparking spaces, usable private open space and adequate amenity for occupants while integrating and enhancing the streetscape, changes to the building are inevitable and anticipated.

19 In my view, the proposal addresses those requirements while retaining the significant and dominant features of the building. On this basis the building is substantially retained and cl 19(5)(a) is satisfied.

Cl 19(5)(b): any increase in floor space is contained generally within the envelope of the existing building and 20 The council argues that the proposal is inconsistent with this requirement because of the basement carpark and the new roof form. This was not an argument accepted by Mr Shiels and I agree with his conclusions. The external walls define the envelope of the building. In my view, it would be simply reading too much into the requirement to include the proposed basement, particularly when the provisions of secure carparking are required by cl 19(5)(g). Even if the new roof form falls within this subclause, and I am not convinced that it does, the extent of the additional visible roof form is so small as to be insignificant. For these reasons I accept that cl 19(5)(b) is satisfied. Cl 19(5)(b): the alteration of the building will meet the ecologically sustainable development objectives and controls of the plan and

21 The requirement that the building will meet ESD objectives and controls of the plan was accepted by Mr Shiels. He noted that the Statement of Environment Effects provides a description of the ESD features of the proposal, including the provision of good thermal mass, retractable sun control devices, appropriate levels of insulation, gas heating and cooling and the use of solar energy.

22 The council argues that the proposal will not satisfy the solar access requirements of three hours to living rooms for units 4 and 5.

23 In accepting that the solar access may not be optimal to all units, it does not necessarily follow that this would lead to a conclusion or a finding that it would fail to meet the ESD objectives and controls of the plans. These requirements are necessarily broad, as they need to cover a range of different circumstances and matters. The council's reliance on solar access requirements addresses only a small area covered by ESD (see Telstra Corp Limited v Hornsby Shire Council (2006) NSWLEC 133 (pars 107-124)). On the issue of solar access, I also accept Mr Shiels' evidence that some consideration needs to be given to the orientation of the lot and the constraints imposed by the conversion of an existing building. For these reasons I accept that cl 19(5)(c) is satisfied. Cl 19(5)(d) - the alterations have been designed with adequate provision for the intended occupants and those in the vicinity of the proposed development in terms of amenity and 24 As I understand, the council's concerns over internal amenity relates primarily to the lack of solar access to some units. For the reasons mentioned previously I accept that solar access to the units is acceptable and that cl 19(5)(d) is satisfied. External amenity impacts are addressed later in the judgment. Cl 19(5)( e ) - the appearance of the building after the alterations have been carried out, will integrate into and enhance the streetscape 25 With the benefit of the site view, I can comfortably conclude that the proposal will improve the appearance of the building in the streetscape. It is to be rendered and painted and will clearly integrate into the streetscape and enhance the residentially zoned streetscape. Any suggestion to the contrary is difficult to understand, considering the incentives in cl 19(5) to convert non-residential buildings to residential uses in residentially zoned areas.

Cl 19(5)(f) - the alteration of the building will provide useable private outdoor recreation space for and directly adjoining each dwelling and 26 The areas of private open space have been designed to adjoin the living areas of their respective units and I accept that they can perform their function of providing open-air courtyards for the units. The council did not raise any issue with the size or to the dimensions of the private open space so I accept that cl 19(5)(f) is satisfied. Cl 19(5)(g) - the conversion of the building will provide adequate accessible and secure carparking spaces and bicycle storage facilities for residents of and visitors to the building and

As a proposal satisfies the council requirement in terms of number of car parking spaces, I accept that cl 19(5)(f) is satisfied. The adequacy of the driveway is addressed later in the judgment.

27 Overall the proposal satisfies all requirements in cl 19(5) and as such, the FSR and minimum landscaped area requirements in cl 19(2) and cl 19(3) respectively, do not need to be applied.

Access driveway 28 The access driveway to the car park was considered by Mr Shiels who acknowledged that it did not fully comply with Australian Standard 2890/2004. He notes that the driveway comprises a series of transitional grades over a distance of 14 metres. The Australian Standard generally requires a 1 : 20 grade the first 6 metres, however, it may be increased to 1 : 8 for Class 2 buildings or where it serves less than 25 cars. With this concession, he accepts that the driveway is acceptable as it provides a 1 : 20 grade for a distance ranging between 4.33 m and 3.24 m with a further 2 m at a grade of 1 : 8. I accept Mr Shiels' evidence on this issue.

External impacts 29 The properties at 11 and 17 Kegworth Street were inspected. 11 Kegworth Street is located diagonally at the rear of the subject site. Concern was expressed at possible overlooking and additional overshadowing from the proposed development. As the existing window in the existing building is to be bricked in, there can be no overlooking impacts. The additional overshadowing from the different roof form is minimal at best and is unlikely to have any impact on the existing dwelling or proposed additions.

30 17 Kegworth Street adjoins the subject site on its western boundary. Concern was expressed at the potential overlooking from the private open space areas of the units. With the provision of fixed screens to the external openings of the existing walls, I accept that overlooking will not be an issue. The potential for noise from the courtyards is also not a matter that would warrant the refusal of the application or any further amendments.

Draft conditions 31 Of the council's draft conditions, the applicant objected to the imposition of deferred commencement conditions 1, 2 and 4. Conditions 1 and 2 relate to the council's submission that the driveway grade is unacceptable. For reasons set out previously, I do not accept this submission so the conditions can be deleted.

32 Deferred commencement condition 4 requires full structural details of the retaining walls and other structures, however, as there was no evidence to suggest that the proposal could not be built, the condition should be made an operational condition rather than a deferred commencement condition.

Orders 33 For the reasons set out in the judgment, the orders of the Court are:

1. The appeal is upheld. 2) DA D/2005/427 for the re-use of an existing non-residential building for residential purposes at 26 Lords Road, Leichhardt is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of Exhibits 1, 2, A and B.

      G T Brown
      Commissioner of the Court
      ljr

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