Cracknell & Lonergan Architects Pty Ltd v Leichhardt Council

Land and Environment Court (NSW)|2014-12-18|Before: Mr P, Ms J

Solicitors: Mr H Duong, Williams The Law Firm (Applicant) Ms J Walsh, Pikes & Verekers Lawyers (Respondent) File Number(s): 10477 of 2014

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application D/2013/391 for alterations and additions to an existing building and conversion to 9 units with basement car parking at 155-157 Balmain Road Leichhardt (the site).

The site and locality

The site is located on the eastern side of Balmain Road with a 12.19m frontage to Balmain Road, and access at the rear on to an unnamed lane which joins Hill Street. The site has an area of 537.4sqm and is basically rectangular with a slightly splayed frontage to Balmain Road, and a dog-leg portion at the rear connecting to the lane. There is a right of way over the dog-leg portion providing rear access to the lane for the adjoining property at 159 Balmain Road, and a drainage easement on the length of the eastern boundary. The site has a depth of approximately 41.7m.

The proposed development

The applicant has amended the application and now seeks approval for 8 dwellings. Seven of those dwellings are proposed as studio-style apartments, each with a north-facing private open terrace garden and living room and a mezzanine bedroom above a galley style kitchen and bathroom. At the eastern (rear) end of the building is a single level apartment with a north facing terrace and living room raised over the driveway access to the basement carpark. Pedestrian access to the units is proposed from an open walkway along the southern side of the building, with vehicle access to the basement carpark providing parking for 6 cars, 6 bicycles and 4 motorcycles from a rear lane. Access from Balmain Road is provided by stairs down to the basement carpark at the northern boundary, and to the walkway on the southern side of the building. There is proposed to be an opening on the Balmain Road façade with a raised planterbed behind.
The proposed development involves the demolition of the internal subdivision of the building; removal of the existing metal and asbestos sheeting to the walls and roof; recladding of the structural frame with new corrugated metal sheeting; and excavation of the concrete floor to provide the basement area. It is proposed to thread the residential apartments through the existing frame, and to reconstruct the bay adjoining the eastern-most bay to bring the ridge level of the roof of that part up to match the ridge level of the rest of the roof.

Background to the application

The history of development applications for the subject site and the adjoining properties is summarised in the Council's Statement of Facts and Contentions (exhibit 1). The most recent development consent granted for the subject site was DA 303/85, granted on 10 September 1985 (the 1985 consent), which approved a change of use to "manufacture of detergents and warehousing of restaurant supplies".
The 1985 consent (exhibit 10) was subject to conditions, including conditions 3 (approved hours 7.30am-4.30pm Monday-Friday), 16 (loading and unloading to be carried out wholly within the site), 40 (noise to be controlled to conform to noise levels permitted under ASA-1055-1978 Noise Assessment in Residential Areas),special condition (a) (maximum number of employees 3), and 70 & 71 (use of premises and/or machinery not to create noise so as to interfere with the amenity of the neighbourhood).
It was accepted in proceedings relating to an earlier development application for the site (Cracknell & Lonergan Architects Pty Ltd v Leichhardt Council [2012] NSWLEC 194 (Cracknell & Lonergan 2012)) that the use sanctioned by the 1985 consent ceased in January 2007.
That earlier development application had sought consent to demolish the existing building, and to erect a two storey residential flat building with six residential units, four 2 bedroom units and two one bedroom units oriented across the northern boundary of the site and located side by side along the length of the building, with basement parking for 8 vehicles (D/2011/126). That application proposed access to each unit from a passageway adjacent to the southern boundary of the site, and courtyards for each unit on the northern boundary of the site. In an appeal to the Court against the refusal of that development application (Cracknell & Lonergan 2012) Craig J held that the 1985 consent remained an operative consent with its enduring effect preserved by s 109B of the Act, and that the past use in accordance with the 1985 consent was not an "existing use" within the meaning of s 106 of the Act. At [51] his Honour held that the use sanctioned by the 1985 consent could be carried out at any time, so long as it was in accordance with the terms on which the consent was granted, and (at [87]) that the development standards in cl 19 of the 2000 LEP applied to the determination of the development application the subject of that appeal. His Honour concluded, on an assessment of the merits under s 79C of the Act, that the proposed development failed to meet the relevant planning objectives in the applicable planning controls, and refused consent.

Planning controls

At the date of lodgement of the development application the subject of this appeal, 10 September 2013, the site was in the Residential zone under the Leichhardt Local Environmental Plan 2000 (the 2000 LEP). Development for the purposes of "dwellings" was permissible with consent.
The General Objectives of the 2000 LEP are provided in cl 13, relevantly cl 13(2) for the built and natural environment and amenity. Clause 17 provides objectives of the 2000 LEP in relation to housing. Clause 7(3) provides that consent must not be granted for development in a zone unless the consent authority has taken into account relevant objectives of the LEP and is satisfied that the development is consistent with those objectives.
Clause 19(2) provides for a maximum floor space ratio of 0.5:1. Clause 19(3) requires a minimum landscaped area of 40%, of which 25% is required to be soft landscaped area (cl 19(3)(b)).
The proposed development has a FSR of 0.79:1 (applicant's calculation) or 1.27:1 (Council's calculation), and a total landscaped area of 2.2% of the site. The applicant accepts that the proposal does not comply with cl 19(2) or (3), and relies on cl 19(5) of the 2000 LEP, which provides: (5) Building conversion and adaptation 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 site 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 car parking 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.
The Leichhardt Local Environmental Plan 2013 (2013 LEP) commenced on 3 February 2014. The site is in the R1 General Residential zone and the proposed development is permissible with consent. The 2013 LEP contains a savings and transitional provision, cl 1.8A, and the development application is to be determined as if the 2013 LEP had not commenced. Clause 4.4 of the 2013 LEP provides a maximum FSR of 0.5:1. Clause 4.3A requires landscaping at 10% of the site; there is a draft amendment to the 2013 LEP to increase that requirement to 40% of site area. Clause 6.11 provides for adaptive reuse of existing buildings for residential accommodation in the R1 zone, in similar but not identical terms to cl 19(5) of the 2000 LEP.
The Leichhardt Development Control Plan 2000 (2000 DCP) applies. The subject site is located in the Piperston Distinctive Neighbourhood, and Part A10.2.3 applies, with provisions for Existing Character, Desired Future Character, and Neighbourhood Controls. The Helsarmel Distinctive neighbourhood is on the western side of Balmain Road. Part B of the 2000 DCP provides for Residential Development, with General guidance and controls (sections B1.0-B3.0), and Controls for development types (section B4.0). Relevant provisions are sections B1.2 Design Element 2 Building Form, Envelope and Siting; and B4.5 Development Type 5 Conversion of existing non-residential buildings.

Issues

The Council contends that development consent should be refused because the proposed development does not comply with the development standards in cl 19(2) and (3) of the 2000 LEP and there is no objection under State Environmental Planning Policy No 1- Development Standards (SEPP 1); cl 19(5) is not met so as to permit an exception to those development standards; and having regard to the building location, siting, envelope and setback controls, and desired future character provisions in the DCP 2000, and the adverse impact on residential amenity of neighbouring properties and residential character of the locality, the proposal should be refused on the merits.

Evidence

The hearing commenced on site with a view of the site and the locality. Evidence was given on site by the owners of the two adjoining properties, 153 and 159 Balmain Road, and by the owner of 167 Balmain Road (exhibit 8). The owner of 153 Balmain Road stated his concerns to be the bulk and scale of the building, in particular the increase in bulk from the raising of the section of the roof which he stated would impact on the amenity of his property in terms of noise and additional bulk. The parties disagree as to whether that objection also included a reference to overshadowing. The owner of 159 Balmain Road stated his concerns to be increased noise and activity levels with the orientation of the units towards the side boundary of his property, and visual impact of the additional roof section adjacent to his rear yard. The owner of 167 Balmain Road stated that he considered the existing building to be an "eyesore", that the proposal would be an industrial looking building, and that 8 units are too many and will create increased traffic and parking problems.
Submissions made to the Council in response to notification of the proposed development are in evidence (exhibit 6, tabs 11, 15). Those submissions raised concerns as to the number of units proposed, parking, traffic congestion including in the rear lane, waste collection, and privacy and overlooking.
The owner of the subject site, Mr Dino Fuccenecco, provided a written statement (exhibit D) in which he stated that he purchased the property in August 2010. At that time the property was used for warehousing ceramic tiles and ancillary showroom, and that use continued for approximately 3 years. During that time the premises were open between 7am to 5pm and from time to time on Saturday mornings, and used for receiving, warehousing and dispatching of boxes of ceramic tiles generally handled on pallets, with truck deliveries from the rear lane, a forklift, use of electric wet saws to cut tiles, and with use of the ground floor front room next to Balmain Road as a tile showroom and the roller door onto Balmain Road operable. The premises were vacated by the lessee in May 2013 and have been vacant pending the outcome of the development application. Mr Fuccenecco stated that he would re-let the premises for a similar light industrial use if the development application is not approved. Mr Fuccenecco provided photographs of the work undertaken for redevelopment of 26 Lords Road Leichhardt, a development application initially refused by the Council and approved by the Court on appeal (Cracknell & Lonergan Architects Pty Ltd v Leichhardt Council [2006] NSWLEC 328).
Expert evidence was provided on behalf of the applicant by Mr Peter Lonergan, architect, and on behalf of the Council by Ms Debra Laidlaw, planner. The experts provided a joint report (exhibit 2) and gave oral evidence.
The applicant relied on engineering evidence from Mr Terry Anthony, Consulting Engineer, in the form of a letter dated 3 September 2013 addressed to the applicant, a letter dated 26 July 2013 addressed to the Council General Manager (exhibit A, tab 3); and a letter dated 25 November 2014 provided in response to the Council's Statement of Facts and Contentions (exhibit B, tab 2). Mr Anthony was not required for cross examination.
Mr Anthony's 2013 letters were provided as part of and during the course of the assessment of the application by the Council. In his letter of 26 July 2013 Mr Anthony stated that he had carried out site inspections at which he had drawings DA01, DA02 and DA03, and a geotechnical report. Mr Anthony details the building construction methodology that would be required to achieve adaptive re-use of the building, including temporary bracing of the existing structure to provide lateral stability during construction, with new footings independent of the existing structure required at the boundaries of the property; constructing a retaining wall progressively below the existing building envelope; maintaining retaining wall stability while bulk excavating to suit the new basement; constructing a new ground floor concrete slab, tying to the top of the retaining walls, which will provide permanent lateral stability to the retaining walls and thus providing permanent support for the adjoining properties; and constructing new first-floor and walls, supported by the new concrete ground floor to integrate with the existing structure. Mr Anthony states that the proposed development "can be safely constructed", and concludes: Therefore it is our considered opinion that the building is structurally capable of conversion without the need for replacement of most of the structure as per Clause 19(5)(a) of the Leichhardt LEP.
In his letter of 3 September 2013 Mr Anthony states that he has reviewed drawing DA04 as requested, and states: The existing superstructure shown to be retained on DA 04 is specifically noted for certain parts of the existing building as: Brick wall Timber columns and timber girts Steel girts Portal frames, roof trusses and roof framing
Mr Anthony states that "all these existing structural elements can be retained and incorporated into the proposed new superstructure required for the alterations to the premises". That letter also specifies the construction procedure required "to enable the project to be built with the new and retained existing superstructure".
In the letter dated 25 November 2014 Mr Anthony provided details of his qualifications and experience and acknowledged compliance with the Expert Witness Code of Conduct. Mr Anthony referred to drawings DA02D, DA03F, DA04A, DA10A, DA11 and M01B, and responded to the Council's contention that the proposed development does not satisfy cl 19(5) of the 2000 LEP: The existing building superstructure consists of masonry walls, rigid steel frames, steel trusses and posts, timber trusses and posts, steel and timber bracing, steel and timber purlins, and steel and timber girts. The superstructure has been built in stages and has been altered over the years. In relation to this proposed development, I am of the opinion that the existing superstructure can be retained and would be augmented and integrated into the new superstructure so that the loading requirements of the relevant Australian Standards and BCA are met. I am also of the opinion that the extent of existing superstructure to be retained is fairly represented on Cracknell & Lonergan's architectural drawing DA11. This representation indicates, on the basis of wall and roof areas, that some 79.8% of the existing superstructure supporting these areas will be retained. Therefore, I consider this shows that a substantial part of the existing superstructure will be retained.

Consideration

The proposed development does not comply with the development standards in cl 19(2) or (3) of the 2000 LEP relating to FSR and landscaping. While there was disagreement between the experts as to the calculation of gross floor area, and in particular whether that should include part of the driveway and part of the basement carpark, there was no dispute that the FSR development standard is breached. The applicant's position at the hearing was that cl 19(5) of the 2000 LEP applies, and the proposed development can be assessed on its merits notwithstanding the non-compliance with the development standards in cl 19(2) and (3). The applicant does not rely on a SEPP 1 objection, and accepts that if cl 19(5) is not satisfied the proposed development cannot be approved. The applicant's position is that cl 19(5) is satisfied, and that on a consideration of the provisions of the 2000 DCP and the objectives of the 2000 LEP, the proposed development should be approved.
The Council submits that cl 19(5) is not satisfied. The Council submits that the Court could not be satisfied that the "building is being substantially retained", as required by cl 19(5)(a); that any increase in floor space is contained generally within the envelope of the existing building (cl 19(5)(b)); that the alterations have been designed with adequate provision for those in the vicinity of the site in terms of amenity (cl 19(5)(d)), as the design of the proposed development has overshadowing impacts for 153 Balmain Road and noise impacts for 153 and 159 Balmain Road; or that the appearance of the building will integrate into and enhance the streetscape (cl 19(5)(e)), as the existing building does not contribute to the streetscape and does not warrant retention.
The applicant submits that the drawings, in particular drawing DA04, and the report of Mr Anthony dated 26 July 2013 and 3 September 2013, make it clear what is proposed to be kept and what is proposed to be removed. The portal frames, trusses, steel girts, timber columns and girts, some brickwork, and roof framing, remains; the asbestos roof is (quite properly) removed, and the old iron cladding is removed; the new work to the exterior of the building includes new perforated metal cladding to the west elevation, new glass blocks to the east elevation, new metal cladding to the south elevation, and new roof. The applicant submits that the alterations to the building are to facilitate its residential use and those alterations substantially retain the building without the need for replacement of most of the structure, where structure refers to the structural capacity of the building and not the structural fabric; and that cl 19(5) is both beneficial and facultative and is to encourage the conversion of a nonconforming non-residential use to a conforming residential use of an existing building.
In addressing cl 19(5)(a) the applicant relied on the qualitative and quantitative analysis in Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187, and submitted that the appearance of the existing building when viewed from public places will not change significantly; there is no existing landscaping and the setting of the building will not be affected when viewed from a public place; there is no impact on a heritage item or heritage conservation area; as the building extends to its boundaries there is no demolition or alteration of structures in the curtilage of the existing building; there is a change of use that is entirely consistent with the purpose of cl 19(5); any change to the streetscape in which the building is located will be positive and an improvement, and a passer-by will notice the new fabric from renewal of the cladding but will not appreciate a new building; the loading dock off Balmain Road will be removed and otherwise the changes to access at the rear will not be visible from the public domain; there is no outlook from the existing building that might be altered; and the form of the existing structure will remain, and the structure remains and the fabric covering the structure will alter by improvement. On the quantitative elements in Coorey, site coverage will remain unchanged; there are no changes to non-compliances with numerical controls; there will be a minor change to the building envelope with the lifting of the roof ridge in the section of the roof that is currently lower than the balance of the roof ridge; boundary setbacks are unchanged except for Balmain Road where the public footpath will be slightly increased; there will be no change to the degree of landscaping; the FSR will decrease; there will be no substantive change in the roof form; car parking and garaging on site will change; the existing landform has already been obliterated by the existing building; and the proportion of the retained building will be very similar to the proportion of the existing building.
The applicant submitted in relation to cl 19(5)(b) that having regard to the definition of building envelope in the DCP 2000, being "wall height, width, depth and roof form and pitch of a building define the building envelope" (exhibit 3, p B8), the floor space of the development is contained largely within that envelope. The car parking facility is an ancillary necessary amenity to the residential use of the building and excavation of the site will have no discernible environmental impact; if the application is refused the existing building remains and its light industrial use will continue which will bring about a continuance of the environmental impacts and potential incompatibility with residential amenity in a residential area, so it is in the public interest that the proposed development be approved on the basis that some site excavation will occur to accommodate off street parking, bicycle and motorcycle parking, and waste handling facilities.
In relation to cl 19(5)(c), by eliminating a non-residential use from a residential area the negative impact of non-residential development on the social and physical environment in the locality is minimised. In relation to cl 19(5)(d), the proposed development will not prejudice neighbours or further impact on them, as there will be no overlooking and only minimal overshadowing of the building and its rear yard to the immediate south, and that impact has to be balanced against the elimination of the amenity impacts caused by light industrial use. In relation to cl 19(5)(e), the development will not significantly alter the appearance of the building other than to enhance its contribution to the streetscape by replacing the cladding and increasing the width of the public footway.

Whether cl 19(5) is satisfied

Clause 19(5) permits consent to 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. There is a definition of "alter" in the 2000 LEP, however that is expressly stated to apply in relation "to a heritage item or to a building or work within a conservation area". That is not the position for the subject site. In his evidence addressing the Council's contention that the proposal is not for an "alteration" to an existing building but rather a new building incorporating some elements of the existing building, Mr Lonergan relied on the revised planning principle set out by Moore SC and Sullivan AC in Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187; and the applicant addressed each of the elements of that planning principle in submissions.
The planning principle in Coorey provides a range of qualitative and quantitative considerations to which regard should be had in determining when a proposed development is for "additions and/or alterations" rather than an application for a new structure: 59 Qualitative issues •How is the appearance of the existing building to be changed when viewed from public places? •To what extent, if any, will existing landscaping be removed and how will that affect the setting of the building when viewed from public places? •To what extent, if any, will the proposal impact on a heritage item, the curtilage of a heritage item or a heritage conservation area? •What additional structures, if any, in the curtilage of the existing building will be demolished or altered if the proposal is approved? •What is the extent, if any, of any proposed change to the use of the building? •To what extent, if any, will the proposed development result in any change to the streetscape in which the building is located? •To what extent, if any, are the existing access arrangements for the building proposed to be altered? •To what extent, if any, will the outlook from within the existing building be altered as a consequence the proposed development? •Is the proposed demolition so extensive to cause that which remains to lose the characteristics of the form of the existing structure? 60 Quantitative issues •To what extent is the site coverage proposed to be changed? •To what extent are any existing non-compliances with numerical controls either increased or diminished by the proposal? •To what extent is the building envelope proposed to be changed? •To what extent are boundary setbacks proposed to be changed? •To what extent will the present numerical degree of landscaping on the site be changed? •To what extent will the existing floor space ratio be altered? •To what extent will there be changes in the roof form? •To what extent will there be alterations to car parking/garaging on the site and/or within the building? •To what extent is the existing landform proposed to be changed by cut and/or fill to give effect to the proposed development? •What relationship does the proportion of the retained building bear to the proposed new development? 61 Obviously, the greater the overall extent of departure from the existing position, the greater the likelihood the proposal should be characterised as being for a new building.
Some of the matters which cl 19(5) specifies as the required elements on which the consent authority must be satisfied, including both quantitative factors such as the physical structure of the building and qualitative matters such as its relationship with the streetscape, are similar to factors identified in Coorey. The central question in the context of this application is the first question identified in Coorey, that is, to identify the purpose for determining whether the application should be characterised as being for additions and/or alterations or as a new structure. That question is answered by the specific terms of cl 19(5), which enables consent to be granted to an application to convert a non-residential building to allow it to be used for a residential use notwithstanding non-compliance with cl 19(2) and (3), but only if the consent authority is satisfied that the proposed development meets the requirements of (a)-(h). Rather than the general matters identified in Coorey, in my view the focus of consideration must be on the matters specified in paragraphs (a)-(h) of cl 19(5). Those matters are both the threshold factors to be satisfied so that the development standards in cl 19(2) and (3) need not apply, and also the specific controls identified at p B71 of the 2000 DCP for conversion of non-residential buildings in residential areas (Section B4.5 Development Type 5 (Conversion of existing non-residential buildings)).
The engineering evidence is outlined above. In summary, Ms Laidlaw and Mr Lonergan agreed that cl 19(5)(f) and (g), and that part of cl 19(5)(d) relating to intended occupants, are met. They disagreed as to whether the other requirements of cl 19(5) are met. Mr Lonergan was of the opinion that the proposal is properly characterised as alterations, whereas Ms Laidlaw was of the view that on the available information it appears to be a new building or alterations and additions incorporating some elements of the existing as well as additions to the nominal building envelope of the existing building. They disagreed as to whether the raising of the roofline over the centre of the building and the excavation for the new basement could be regarded as "generally within the envelope of the existing building", and as to how to calculate the FSR; whether the amount of work involved in securing the retention of fabric was of any real benefit from an ESD perspective as opposed to construction of a completely new building; whether adequate provision was made for those in the vicinity of the development in terms of amenity; and whether the appearance of the building after the alterations have been carried out would integrate into and enhance the streetscape.
The evidence relating to, and findings on, each of the paragraphs of cl 19(5) in dispute, are as follows.

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

Ms Laidlaw's evidence was that on her understanding of the drawings the only part of the existing building that would be retained comprises the superstructure shown in a simplified form on DAM01 being limited to that part that is above the existing concrete floor level, which would include steel/timber framing/bracing elements, a low masonry wall in variable condition, and parts of the brick wall on the north eastern and eastern elevations. Some of the parts to be removed are currently structural but would become non structural on completion, for example the collar ties in the front of the building that are to be cut or removed to allow insertion of the mezzanine level bedrooms. Ms Laidlaw considered that clarification is needed of the extent to which the superstructure would need to be augmented by new structural elements, the relative role of the existing retained structure and any additional new structure in carrying the loads of the building. The proposed development would require removal or demolition of the whole of the roof, both framing and cladding, over the lower section; all external metal cladding; the western wall to Balmain Road beneath the eave line; part of the eastern wall (to allow for the new car park entry). New work will include the structure required to augment the retained elements of framing, re-cladding of the roof and northern and southern walls, construction of new western wall including fire stair, access driveway, basement floor, ceiling/ground slab and first floor slab.
Mr Lonergan's approach was to focus on the retention of much of the frame, columns and purlins, which he regarded as the "structure" of the building, rather than the slab which is not structural and provides no structural integrity to the building. While the existing slab will be demolished, it does not perform any structural purpose. The ground slab is not structural and nor is the cladding to the walls and roof, and a significant amount of this is asbestos material. The "substance" of the building is the structure - frame and load bearing elements, and the building is substantially retained if it is structurally capable of conversion without the need to replace most of that structure; and in his opinion it is evident from the drawings that most of that structure is being retained. It is usual in the adaptive reuse of an industrial building that a significant amount of structure and fabric, services and fittings are built into the structural frame, and the additional structure may be required to support the inserted fabric.
Clause 19(5)(a) was considered in Luna Moon Pty Ltd v Leichhardt Council [2005] NSWLEC 566 (Nott C), Cracknell & Lonergan Architects Pty Ltd v Leichhardt Council [2006] NSWLEC 328 (Brown C) (Cracknell & Lonergan 2006), and Modog Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 489 (Bly C). In Luna Moon, in obiter comments at [23], Nott C noted that certain retained elements of the building such as structural steel columns and beams and concrete floors or slabs, should probably be given greater values than old metal cladding that might need to be replaced; Nott C considered that the building the subject of that application was substantially retained, because important structural members were retained and because the overall form of the adapted building was much the same as the existing building. In Cracknell & Lonergan 2006, the proposed development (at 26 Lords Road) would retain the external masonry walls, while removing the roof, floor and mezzanine areas. Brown C agreed with the approach of Nott C that different elements of the building are more valuable if retained than others, and noted (at [17]) that the outside walls were the dominant component of the building and represented its form when viewed from the street and adjoining properties. Brown C concluded that the proposed development addressed the requirements of cl 19(5) for parking, usable private open space and adequate amenity while integrating and enhancing the streetscape, while retaining the significant and dominant features of the building. In Modog, Bly C considered that in the context of cl 19(5)(a), the word "structure" refers to how the various parts of the building are integrated to form a whole rather than referring to individual structural elements, and conceptually, the words "building" and "structure" when read in context mean much the same thing. Bly C adopted a similar approach to that taken in Luna Moon, considering that perhaps greater importance should be given to structural elements, which would include masonry walls, concrete and timber floors, columns, trusses, joists, rafters and purlins, by comparison with non-structural elements; and he considered that despite the distinction between structural and non-structural elements, together those elements comprise the building or structure. Bly C agreed with the approach taken by Ms Laidlaw, giving evidence in those proceedings on behalf of the Council, that in order to satisfy cl 19(5)(a) the original structure associated with floors, walls and roof should be substantially maintained.
While clearly dependent on the circumstances of each of the applications the subject of those appeals, these decisions support an approach to cl 19(5)(a) that it requires more than simply a quantitative analysis, and that different elements of a building may be more valuable if retained than others: in Luna Moon it was the retention of important structural members and maintenance of the overall form of the building; in Cracknell & Lonergan 2006 it was the external masonry walls as the dominant component of the building; while in Modog, the building was to be completely gutted, leaving only the external walls which were themselves to be altered. None of those decisions purport to identify in the abstract what those elements might be, or limit the consideration of "structure" to structural capacity; all undertook an assessment of the building as a whole. The critical issue is to focus on the wording of cl 19(5)(a) itself, and that requires that the building be "substantially retained", which is explained further to mean that "the building" is structurally capable of conversion "without the need for the replacement of most of the structure".
In Mr Lonergan's opinion the relevant drawings to understand what elements are retained and what elements are going for the present application are MA01B and DA11. Mr Lonergan conceded that some detail is not apparent on those drawings, for example the removal of a small brick wall on the northern elevation of the building. He accepted that there would be a significant amount of structure added, as is the case for any industrial conversion, for example the dividing wall structure to construct the internal walls.
Drawing DAM01B (21 November 2014) identifies the rafters; timber posts, beams and girts; steel truss and girts, and steel portals and purlins; and section of single skin brick with engaged piers, to remain. That drawing shows the demolition of part of the brickwork and the column at the rear to allow vehicle access; the timber framed wall on Balmain Road; the roof at the lower section; wall framing; and the removal of part collar ties. Drawing DA10 shows demolition of all metal roof and wall sheeting and replacement; the concrete ramp and garage door at Balmain Road; part of the façade; and the asbestos roof sheeting. Drawing DA11 shows this in diagrammatic form, with areas "retained" coloured blue. However, as noted by Ms Laidlaw (exhibit 2, p14), the blue describes the general plane/area of "wall" or roof, of which only the inside structure is actually being retained, and not the cladding or the exterior. None of these drawings show the demolition of the concrete floor for excavation of the basement. Drawing DA04 shows the existing structure (with elements to be retained in red), and proposed infill (with infill work in black). Mr Lonergan provided an additional drawing, JER, for the joint report (exhibit 2 Annexure B) with diagrammatic sections to explain his approach. That drawing indicates the extent of new work required to construct the basement, internal mezzanine elements of the proposed units, and stairs.
In his 2013 letters, prepared as part of the application considered by the Council and not for the purposes of the appeal, Mr Anthony addresses the structural integrity of the existing building, and confirms that the proposed development can be safely constructed, provided that the construction methodology outlined is adopted (letter 26 July 2013); and he addresses the extent of existing superstructure to be retained, commenting that the structural elements of brick wall, timber columns, timber girts, steel girts, and portal frames, roof trusses and roof framing, "can be retained and incorporated into the proposed new superstructure", again specifying the required construction procedure to maintain stability of adjoining properties and provide final building stability on completion (letter 3 September 2013). This evidence assists an understanding of the construction issues posed by the proposed development, and would support a finding that the building is structurally capable of conversion, subject to adherence to the recommendations as to the construction procedure that would be required so as to ensure structural stability of both the building and the adjoining properties.
That is part, but not the entirety, of the question posed by cl 19(5)(a) of the 2000 LEP, which requires the consent authority to be satisfied that the building is structurally capable of conversion "without the need for the replacement of most of the structure", and so I would not accept as determinative Mr Anthony's conclusion in his letter of 26 July 2013 that cl 19(5)(a) is met. Clause 19(5)(a) requires consideration of "the building" and "the structure". As discussed by Bly C in Modog those are broad terms, which may include, but not be limited to, structural elements such as those identified by Mr Anthony's reference to "superstructure", which he explained in the letter of 25 November 2014 consists of "masonry walls, rigid steel frames, steel trusses and posts, timber trusses and posts, steel and timber bracing, steel and timber purlins, and steel and timber girts".
It is clear both from the drawings referred to in paragraph [44] above and Mr Anthony's discussion of the superstructure in his letter of 25 November 2014, that what is proposed to be retained is essentially part of the structural elements that are intended to continue to support the new steel cladded walls and roof. Mr Anthony's assessment based on drawing DA11 was that some 79.8% of the existing superstructure supporting the wall and roof areas would be retained. Ms Laidlaw expressed concerns as to the extent to which some elements of that superstructure, for example rotting parts of timber beams, could in fact be retained; and how much of presently structural elements would continue to serve a structural as opposed to architectural function. Ms Laidlaw acknowledged that she does not have expertise in structural engineering. I accept Mr Anthony's evidence in the letter of 25 November 2014 which was prepared in compliance with the Expert Witness Code of Conduct. Accepting Mr Anthony's numerical calculation based on DA11 of the superstructure elements to be retained, his evidence also was that those parts of the structural elements of the proposed development would be be "augmented and integrated into new superstructure".
Having regard to "the building" as a whole, I am not persuaded that those superstructure elements to be retained are more than a part of what might be regarded as "the structure" as explained by Bly C in Modog. While I accept that some parts of the supporting structure are to be retained, with the exception of the retention of part of the rear masonry wall, all the other elements of the building including the roof and walls and the floor, are to be entirely replaced. As noted in the applicant's submissions, the new work to the exterior of the building includes new perforated metal cladding to the west (Balmain Road) elevation, new glass blocks to the east elevation, new metal cladding to the south elevation, and a new roof. While the proposed building would appear in similar form to the existing building, from the public domain on the Balmain Road frontage and from that part of the structure observable from the rear lane there is entirely new structure to replace the existing structure. In contrast to Cracknell & Lonergan 2006, it could not be said that the form of the building when viewed from the street and adjoining properties is retained.
I accept the applicant's submission that a non-residential building would generally not be able to be converted to residential use without significant alterations to the existing building including alterations to the fabric, demolition and construction of new work. The decisions in Luna Moon and Cracknell & Lonergan 2006 are examples of that. However, cl 19(5)(a) requires an assessment of the point at which most of the structure is replaced so that it cannot be said that the building is substantially retained. Having regard to the extent of new work required to augment the superstructure and to replace all the other elements of the building and the resulting form and appearance of the building, I am not satisfied that the building is "substantially retained" as required by cl 19(5)(a).

Cl 19(5)(b): any increase in floor space is contained generally within the envelope of the existing building

Mr Lonergan was of the opinion that there is no increase in the floor space, and that the FSR of the existing building is 0.85:1 and that proposed is 0.79:1. Mr Lonergan considered that the "envelope" is the saddle of the ridge, and the proposal fills it. Ms Laidlaw disagreed, as in her opinion some areas in the basement excluded by Mr Lonergan on his interpretation of gross floor area (represented in Annexure C of exhibit 2) should be included, and on her calculations the existing FSR is 0.8:1 and that proposed is 1.27:1. In her opinion the extent of work in raising of the roof/wall level in the centre of the building and the construction of a new basement below the existing floor level is outside the ambit of "contained generally within the envelope" of the existing building.
The applicant relies upon the explanation of "building envelope" at p B8 of the 2000 DCP, namely that "wall height, width, depth and roof form and pitch of a building define the building envelope", and submits that there will be a minor change to the building envelope with the lifting of the roof ridge in the section currently lower than the balance of the roof ridge and otherwise the building envelope remains the same.
There is no definition of "building envelope" in the 2000 LEP. The reference to page B8 of the 2000 DCP is not a definition, however that explanation of what the "building envelope" is continues, to include the statement that "the building envelope defines the maximum potential volume of a development above ground level", and that "it applies to the whole area of a building defined by external walls". Included in the applicant's bundle of documents (exhibit E) is a Glossary of terms used in the DCP, stated to be additional to those in the LEP and intended to explain terms used in the DCP (pages G1, G2, G3). That Glossary includes a definition of "building envelope", defining it to mean "the limits of development of a building, defined by the wall and roof plane controls". The Council's position is that the Glossary is not included in its presently available version of the DCP (provided in exhibit 3), however it is unable to locate any resolution to remove the Glossary and accepts that it is included.
A development control plan must not be inconsistent with a local environmental plan (s 74C(5) of the Act), and one of its purposes is to provide guidance in implementation of a local environmental plan (s 74BA(1)). While it would not be appropriate to transport a definition in a development control plan into a local environmental plan, in my view the discussion of building envelope guidelines at page B8, and the definition in the Glossary, provide guidance in giving effect to cl 19(5)(b). In the absence of a definition in the LEP, I would reach a similar conclusion to that adopted by Brown C in Cracknell & Lonergan 2006 at [20] that the external walls define the envelope of the building, and that it would be reading too much into the requirement to include the proposed basement, particularly when the provision of secure car parking is required by cl 19(5)(g).
On that basis it is not necessary to determine which expert's approach to the calculation of gross floor area is correct. Even if Ms Laidlaw's approach to calculating gross floor area based on her reasoning at pp 5-6 of the joint report and responding to Mr Lonergan's diagram at Annexure C to the joint report which excludes most of the basement, and in exhibit 12, is correct, the increase in floor space represented by the basement would not be part of the "building envelope" for the purposes of cl 19(5)(b). If Mr Lonergan is correct in his analysis, there is no overall increase in floor space, and if the requirement in cl 19(5)(b) is triggered by an increase the total floor space for the building, that requirement would not need to be addressed. If it is not so limited, as the inclusion of the qualifying word "any" would suggest, the issue would be whether the raising of the section of the roof to the same height as the rest of the roof is an increase in floor space "contained generally within the envelope" of the existing building. That extension represents a small section of the roof which overall does not increase in height, and could be regarded as being "generally" contained in the existing building envelope. However that raised section of the roof is visible from the adjoining properties, including the rear garden of 159 Balmain Road, and has overshadowing impacts for 153 Balmain Road. In my view the location of the additional roof height, and its significance for the immediately adjoining properties, is a matter for consideration under cl 19(5)(c), rather than cl 19(5)(b).

Cl 19(5)(d): the alterations have been designed with adequate provision for the intended occupants, and those in the vicinity of the site of the proposed development, in terms of amenity

I accept the agreed expert evidence that there is adequate amenity for the occupants of the proposed development, and on that basis I am satisfied that the alterations are designed with adequate provision for the intended occupants. The experts disagreed as to whether the alterations have been designed with adequate provision for occupants in the vicinity of the site.
In Mr Lonergan's opinion the provision of amenity for those in the vicinity is not greatly altered; there is a minor increase in overshadowing to the south but the change from industrial to residential use is positive as would be the removal of asbestos material, less noise, and regular parking provisions. In Ms Laidlaw's opinion the proposed raising of the middle section of the roof will add further shadow to the current overshadowing of the property to the south; will add visual bulk which would be more significant for 153 Balmain Road than for 159 because that property is a lower level; and there would be an unreasonable acoustic privacy impact on neighbours to the north and south associated with the concentration of private courtyards along the northern side boundary of the site and the location of the accessway along the southern side boundary of the site. Ms Laidlaw accepted that if the north facing mezzanine windows are fixed and frosted or top fixed hopper style and openable only 15 degrees from vertical, and a privacy screen is fixed to the east facing deck of unit 8, the visual privacy impacts would be largely resolved.
The experts addressed the overshadowing issue in detail in their oral evidence, by reference to the shadow diagrams in exhibit E, exhibit G, and exhibit 13, and on which they were generally in agreement other than the impact of the roofing over the pergola at 153 Balmain Road, which is not shown on the photograph in exhibit 13. Ms Laidlaw and Mr Lonergan agreed that there is very little sunlight in the rear yard of 153 Balmain Road, and that the proposal would impact on what is available. Ms Laidlaw agreed that the additional overshadowing is quantitatively relatively minor, however the property would go from substantially overshadowed to fully overshadowed. In her opinion there would be additional overshadowing on the rear extension at 153 Balmain Road from slightly before 11am to around 1.00-1.30pm, with additional shadowing on the glazed door. Mr Lonergan agreed generally with Ms Laidlaw in principle, and stated that shadow would start to be cast from just after 11.00am by the western portion of the building; between 11.00-12.00 the shadow is cast by the ridge of the existing part. He agreed that there would be additional shading at 11.00 and midday at an acute angle on the glazed door at the rear extension of 153 Balmain Road, as shown in exhibit 13.
The applicant submits that any prejudice or impact has to be balanced against the elimination of the amenity impacts caused by light industrial use of the subject premises, which could involve trucks and forklifts, visitation by the public and associated impacts were there to be a showroom in association with any light industrial use, and on balance the proposed development will clearly improve and certainly not further impact on the amenity of the existing residents. In her oral evidence Ms Laidlaw agreed that the change in use to residential would be beneficial. That may be so, however in terms cl 19(5)(d) does not require a comparison, or balancing, of amenity impacts. Clause 19(5)(d) requires the consent authority to form a view on whether the alterations to the building have been designed with "adequate" provision for those in the vicinity of the site in terms of amenity. If cl 19(5) is satisfied and consent could be granted, s 79C(1) of the Act would require a balancing of any amenity impacts of the proposed development with all other relevant factors, which would include any benefits derived from a conversion to residential from industrial use as encouraged in the form of the non-application of FSR and landscaping requirements of cl 19(2) and (3) and the general encouragement of flexible approaches to the provisions of the 2000 DCP in Part B4.5.
Based on the expert evidence I am satisfied that the impacts on solar access to 153 Balmain Road, while quantitatively minor, are impacts on a property for which solar access is already significantly constrained. Having regard to that impact, and also the increased visual bulk (as represented in Ms Laidlaw's montage in the joint report and apparent on the view) at the rear gardens for both 153 and 159 Balmain Road, of a building already occupying the majority of its site, I am not satisfied that the alterations make "adequate provision" for the occupants of the adjoining properties in terms of amenity. I am not satisfied that cl 19(5)(d) is met.

Cl 19(5)(e): the appearance of the building, after the alterations have been carried out, will integrate into and enhance the streetscape

Ms Laidlaw's evidence was that the existing building is a very basic, deteriorating shed-like structure of low, if any, architectural merit constructed with a variety of techniques in what appears to be very rudimentary construction standard. While she agrees that there is merit in maintaining the essence of diversity including the industrial mixed use typology, she disagreed as to whether this should be pursued at all costs. In her opinion the negative aspects in terms of streetscape, and adjoining residential amenity, is the length of the building extending from the front to virtually the rear boundary, associated with this the lack of landscape contribution over that part of the site where such green space forms a characteristic element of residential character, the meagre front setback to the apparent front boundary and associated lack of landscape contribution to the streetscape, the fire/access stair in the front setback, the otherwise inhospitable front façade and the fact that the building fills the site from side to side. The upgrading of the exterior fabric and some minor articulation to the envelope to the front and sides is in her opinion a small positive, but do not alter the fact that what is proposed is a fundamentally unsympathetic form which would perpetuate rather than resolve the negative aspects of the existing building's impact. Ms Laidlaw agreed that the removal of the roller shutter door and the replacement of the old sheeting would be an enhancement.
Mr Lonergan agreed that there are negative impacts due to the length of the building, particularly to the front, and the lack of any landscape setting, however this application is to change an industrial use to residential in a zone where such transformations are actively encouraged by the 2000 LEP. The purpose is to keep the architectural features of the industrial building while getting rid of the industrial use. In his assessment of change to the streetscape, Mr Lonergan was of the opinion that the streetscape will change marginally with a slightly enhanced/larger setback to the footpath and the addition of a landscaped planter bed; the existing roller door will be demolished and infilled; a new exits from the basement will sit behind the existing façade; and a new gate is proposed to access the southern walkway. In his opinion the building is currently part of the streetscape; the cladding material proposed for the wall is the same type and colour as other non-residential buildings in the streetscape, and it is characteristic of the Piperston District that mixed development in the area "results in the lack of cohesiveness between adjacent properties".
In oral evidence Ms Laidlaw agreed that there is a mix of architectural forms and styles in the locality. She considered the streetscape north of the Scout hall, where the subject site is located, as more cohesive, with cottages. Mr Lonergan considered the streetscape to the north of the Scout hall to be a mix of detached and attached dwellings both single and multi-storey, and a range of different developments.
The diversity of developments in the locality is shown on the applicant's streetscape montage (exhibit E, tab 2), and was apparent on the view. The applicant and the Council differed as to whether the relevant "streetscape" is that in the immediate locality, or based on a broader visual catchment, which would include development along Balmain Road further away from the subject site and that on the other side of Balmain Road which is not in the Piperston Distinctive Neighbourhood under the 2000 DCP. Based on the view, the development immediately adjoining the subject site to its north and south on the western side of Balmain Road between the Scout Hall and Hill Street, is residential, with dwellings fronting the street with rear gardens and open space; a wider assessment of the locality would include the more diverse forms of development including the commercial uses to the south and the school to the north. I accept the applicant's submission that the appearance of the building from Balmain Road would improve over its present state with the new cladding and removal of the roller door and an increase in depth of the public footpath. However, even having regard to the wider visual catchment urged by the applicant, I am not persuaded that the retention of the present form and bulk of the building, with its length, height, and coverage of the site to both side boundaries, would allow the appearance of the building to "enhance" the streetscape as required by cl 19(5)(e).

Conclusion

I accept the agreed expert evidence that cl 19(5)(f) and (g), and that part of cl 19(5)(d) relating to intended occupants, are met. It was common ground that cl 19(5)(h) is not relevant. While the Council did not include cl 19(5)(c) in its contentions (contention 4(b)), had I been satisfied that all the other requirements in cl 19(5) were met it would have been necessary to address that requirement; given the findings above it is not necessary to form a view on whether the alteration of the building would meet the ecologically sustainable development objectives and controls of the 2000 LEP.
For the reasons stated above, I am not satisfied that cl 19(5)(a), (d) and (e) are met, and accordingly, cl 19(5) is not satisfied. Having regard to the non-compliance with the FSR and landscape standards in cl 19(2) and (3), the application cannot be approved.
That conclusion means that it is not necessary to undertake the broader assessment of the proposed development in accordance with s 79C(1) of the Act, including deciding whether that assessment would have to take into account the likely amenity impacts of a continuation under s 109B of the Act of the use authorised by the 1985 consent. In particular, it is unnecessary to determine whether, as submitted by the applicant, the subject premises could be returned to an industrial use not necessarily confined to the specific use authorised in the 1985 consent, based on application of a genus test to the continuation of that consent (relying on House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44), or whether, as submitted by the Council, such a use would be limited to that authorised by the 1985 consent (relying on Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120). I note that the latter position would accord with the conclusion of Craig J in Cracknell & Lonergan 2012 (at [57]) that the 1985 consent "sets the boundaries" of the authority to use the site, and is also consistent with other decisions of the Court, including Botany Bay City Council v Parangool Pty Ltd [209] NSWLEC 198 (Lloyd J), MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125 (Pepper J), and Jojeni Investments Pty Ltd v Mosman Municipal Council [2014] NSWLEC 120 (Sheahan J). The applicant accepts that since development for the purposes of "industries" or "light industries" is not permissible in the R1 zone under the 2013 LEP, change to another form of light industrial use would not be possible as complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 or cl 3.2 of the 2013 LEP. It is also unnecessary to decide whether the proposed development would be consistent with the objectives of the 2000 LEP, as required by cl 7(3), and the objectives and provisions of the 2000 DCP, including the guidelines at B4.5, or the weight to be given to the aims and objectives of the 2013 LEP.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development application D/2013/391 for alterations and additions to an existing building and conversion to residential units with basement car parking at 155-157 Balmain Road Leichhardt is refused. 3. The exhibits are returned except for exhibits A, B, C, 1 and 7 are returned. 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: 09 April 2015

(2004) 138 LGERA 120

(2010) 172 LGERA 125

At a glance

Court

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Before

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Judgment (17 paragraphs)

Parties

Cases Cited (9)