East No. 3 Pty Ltd v Sydney City Council

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ; CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373

APPLICANT Ms S Duggan, barrister SOLICITORS Pike, Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggat SC SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10469 of 2005 East No. 3 Pty Ltd v Sydney City Council

Judgment 1 This is an appeal against the refusal by the City of Sydney Council (the council) of a development application (D/2004/1727) for alterations and additions to an existing residential flat building at 47 Bent Street, Paddington (the site). The site and its context 2 The site is described in the Statement of Basic Facts as:

The subject site is irregular in shape and has a frontage of 24.48 m to Bent Street, 29.42 m to Leinster Street and 14.63 m to Regent Lane. The northern boundary of the site is 27.885 m in length and the site has a total area of approximately 544.8 sq m.

The site's main frontage is to Bent Street and it has access from both Bent Street and Regent Lane. Vehicles can drive through the site via the common driveway.

The site is occupied by a three storey residential flat building comprising fifteen (15) studio apartments and off-street parking for seven vehicles. The building is comprised of the main part of the building fronting Leinster Street and a smaller wing fronting Bent Street. 3 The site is within the Paddington South Conservation Area under South Sydney Local Environmental Plan 1998 (LEP 1998). 4 The City of Sydney Heritage Inventory Sheet describes the Conservation Area as: …an irregular wedge-shaped area defined by major traffic routes Oxford Street, Moore Park Road and the Victoria Barracks. The street pattern is determined by these boundaries, with east/west streets generally following contours. There is a pattern of primary and secondary streets/lanes. Institutional sites are concentrated along Oxford Street and interspersed with commercial development. Elsewhere development is predominantly residential. Residential lots are fairly regular and developed with rows of two storey terrace housing of the late Victorian period. The sloping topography creates fine vistas of stepped terrace forms. 5 The Heritage Inventory describes and rates individual streets. Leinster Street is described relevantly as "varied scale and form, narrow street, 2-storey terraces, flats detracting and inter war, new development - Rating B." Bent Street is described as "predominantly 2-storey Victorian terraces, 3-storey Victorian corner building (No. 33) to corner of Stewart Street and detracting 3-storey building to west corner of intersection with Leinster Street. Nos. 17, 19 and 4 are single storey - Rating B." 6 There is no description or rating for Regent Lane, which is predominantly, a service lane fronted by garages. History of the application 7 A development application to strata subdivide the existing building was approved on 17 February 2004. The current application was lodged on 22 December 2004. Council notified the application and received eight submissions objecting to the proposal. A submission from the Paddington Society was also received which did not object to the proposal but commented on the proposed fence. Council refused the application under delegated authority on 30 May 2005. 8 The appeal was heard on 30 August 2005. After hearing evidence and prior to submissions, at the request of the parties, I provided my preliminary findings. In response to this, the appeal was adjourned to enable the applicant to prepare amended drawings. The amended application and further evidence was considered on 9 November 2005. The proposal 9 The development application is for alterations and additions to the existing building including an additional storey, reconfiguration of the existing 15 studio apartments to provide 11 studio apartments and 4 x 1 bedroom apartments over two levels. External alterations to the building include partial enclosure of the external corridors in the northern façade of the building to provide additional floor space to some units, additional balconies at ground floor, a new top floor and changes to existing balconies and alterations to the main entry on Bent Street. The building is to be rendered and painted and landscaping provided. The existing seven surface carparking spaces will be formalised. 10 The additional storey is over that part of the building that faces Leinster Street. In the amended proposal this floor is set back 1400mm from the existing building façade to Leinster Street, 1750mm from both the existing north western building façade and the Bent Street facades. There is no setback from the existing building façade that faces Regent Lane. Planning Framework 11 The site is zoned Residential 2(b) under LEP 1998. The proposal is permissible with consent. 12 The objectives of the zone relevantly include.

(a) To enhance the amenity of existing medium density residential areas. (b) 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. 13 Clause 10 requires that consent must not be granted unless the proposal is consistent with the zone objectives. 14 Clauses 22 and 32A of LEP 1998 provide heritage aims and criteria for the assessment of development in conservation areas. 15 Clause 28 of LEP 1998 provides urban design principles. 16 South Sydney Development Control Plan 1997 - Urban Design (DCP 1997) permits a floor space ratio (FSR) of 1:1 and a maximum height of 6 m. Height is defined as being measured from natural ground to the ceiling of the top most habitable floor, not including attics. 17 The existing building has a FSR of 0.94:1 and the proposed FSR is about 1.06:1. The height of the existing building from Bent Street is 8.3 m to 8.4 m and from Leinster Street is 8.6 m to 9.2 m. The proposal has the same height to Bent Street and a height on Leinster Street of 11.2 m (Bent Street end) to 11.8 m (Regent Lane end). 18 South Sydney Heritage Development Control Plan 1998 (DCP 1998) is also relevant. 19 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Developments (SEPP 65) establishes ten design principles for residential development. Under SEPP 65 the Residential Flat Code (the code) must be considered. 20 On 19 April 2004 council resolved that the FSR and height controls be considered as "maxima" with any variation being in exceptional 21 circumstances only. I have not given this resolution weight but have considered the application on the basis of the DCP objectives and controls. The evidence 22 The Court heard evidence from the following experts. For the applicant · Mr K. Nash, town planner · Mr G. Brook, heritage architect For the council · Mr S. Carr, town planner · Ms C Kemp, heritage planner 23 A number of residents gave evidence on site. Their main concerns reflected those in the Statement of Issues. In addition they raised concerns about the amount of parking to be provided on site, vehicle access to the site, traffic and privacy and overshadowing that would result from the development. The issues 24 The Statement of Issues before the Court contains three issues, which can be summarised as whether the bulk, scale and height of the proposal have an acceptable impact on the conservation area and the streetscape. Impact on the conservation area and the streetscape The evidence 25 All the experts agreed that the amended plans had reduced the visual impact of the proposal but Mr Carr and Ms Kemp did not consider the amendments resolved their concerns. All the experts agreed that: · the existing building was a detracting element in the streetscape and the conservation area and exceeded the current planning controls; · the proposed changes to the existing building (except for the additional storey) would improve the detracting appearance of the building and its relationship of the building to the streetscape and the conservation area. The planners agreed that the changes would improve the amenity of the units; · The proposed amendments, including the additional storey, would have an acceptable impact from Bent Street. · If the approval for subdivision proceeded the opportunities for significant upgrading of the building are likely to be diminished. 26 The key area of disagreement was the impact of the additional storey from other viewpoints, particularly Leinster Street and Regent Lane. 27 Mr Nash and Mr Brooks considered that the proposal, including the additional storey, to be acceptable. The proposed changes to the existing building reduced the bulk by breaking up the length of the façade on Leinster Street and improving its overall appearance. While the additional storey would be visible from certain vantage points these experts did not consider that it would add to the overall bulk of the building and was acceptable in its context. Both Mr Brooks and Mr Nash were of the opinion that the conservation area and the immediate context of the building were characterised by varied buildings of different heights. 28 Mr Brooks referred to:

The traditional variety of scale that is inherent in Victorian streetscapes and notes in particular the scale of the proposed additions when compared with the greater scale of the Victorian building on the corner of Bent and Stewart Streets. This building is actually higher than the proposed additions but is a key contributor to the conservation area and is not regarded as being excessive or overpowering of the scale of the adjoining terraced houses. 29 Mr Brooks and Mr Nash form the opinion that while the photomontages illustrate that the additional storey would be visible, it did not present an unacceptable height, bulk and scale when compared to the existing building and surrounding development. 30 Mr Brooks considered that the extra storey provided an appropriate termination to the building and was appropriate in the conservation area where many buildings are designed with a decorative "skyline edge". He stated that the extra storey was a "reasonable contemporary expression" and that while the proposal could occur without this storey it would reduce its architectural resolution. 31 Mr Nash agreed that the proposal could occur independent of the additional storey but that it provided improved amenity for the development. In particular, he stated that:

The supply of studio and 1-bedroom apartments in Paddington generally is limited due to the lack of redevelopment opportunities. There predominant dwelling size is two and three bedroom terraces. 32 In his opinion, by converting 4 studio units to 4 x 1 bedroom apartments, the proposal provided a more appropriate dwelling mix for the changing demographics of the inner city. 33 Mr Carr and Ms Kemp considered that the extra storey would be visible from a number of vantage points and would add to the overall height and bulk of the building. In the joint statement Mr Carr agreed that:

The refurbishment of what is presently an unattractive flat building is considered to be beneficial to the locality …..this should not be achieved at the expense of addition of bulk to a building, which is already significantly in excess of the planning controls for the site, and the size of dwellings around it. 34 The vantage points where Mr Carr and Mr Nash disagreed about the impact were Leinster Street and Regent Lane. Their difference of opinion in relation to Leinster Street is summarised in the Joint Statement:

Mr Carr says that the proposed addition will be clearly visible as an additional story along Leinster Street (from Bent Street down to Regent Street) This story will be especially visible from the footpath on the southern side, and will be an intrusive element in the streetscape

Mr Nash agrees that the additional level with visible in Leinster Street as evidenced by photograph 12 if his SOE and from the western footpath of Regent Street at the intersection with Leinster Street. Whilst the additional level as amended will be visible from these locations it will not be intrusive in the existing building form and streetscape. 35 In relation to Regent Lane the experts stated:

Mr Carr says that Regent Lane is continually used by both residents in the lane and as a pedestrian thoroughfare. From Regent Lane, the proposed development will be viewed as over two full storeys higher than the terraces along Leinster Street. Regent Lane is regarded as the public domain for the purposes of both council controls and State legislation and is a key element in the surrounding urban context

Mr Nash disagrees about the role of Regent Lane. It is a dead-end lane (at Leinster Street) with the pavement significantly elevated above the carriageway of Leinster Street. The vista south is normally truncated by parked vehicles. It does not perform as a safe pedestrian link. The refurbishment of the existing building will have its most significant benefit when viewed from Regent Lane, particularly in respect to the treatment of the stairways and the setback of the upper level by a 1750 millimetres from the existing building façade to Regent Lane. Findings 36 At the hearing on 30 August I provided preliminary findings to guide the parties. The amended plans were in response to these findings. The experts agree that these amendments have reduced the impact of the building however, I find that this is not sufficient to address the concerns that I have previously articulated. These can be summarised as: · While the character of the area is varied, the existing building is of a height, bulk and scale that is uncharacteristic of other buildings in the area and is a detracting element. This is generated by its height, unbroken length of façade along Leinster Street, its unattractive architectural qualities and lack of landscaping. · I agree with the experts that the treatment of the lower levels breaks down the bulk of the existing building and improves its appearance. · The provision of additional floor space, provided it does not materially increase the bulk of the building, would not have an adverse impact on the conservation area or the streetscape, particularly as the appearance of the rest of the building is being improved. 37 To put these findings simply, any additions to the building should not make the building appear bigger than it does already, as it is already too big for its context. To better achieve this, the plans were amended to provide a greater setback from the existing walls of the building. However, due to the narrow width of the building of approximately 6m, it is difficult to achieve a usable floor plate and sufficient setback for the addition and for it not to appear as an extra storey that adds to the bulk of the building. 38 I accept Ms Duggan's submission, for the applicant, that as the development application is for alterations and additions to an existing building it cannot be assessed in the same manner as if it were an application for a new building. Further, that the application must be assessed as a whole and the benefits of the building refurbishment be considered against any minor impact of the additional storey. Ms Duggan submitted that because the extra storey is visible it does not follow that it has an unacceptable impact. 39 The DCP 1997 controls in relation to FSR and height refer to new buildings and there is no specific reference to alterations and additions. Where the existing building already does not meet the existing numerical controls or the objectives of these controls in DCP 1997 it is difficult to assess compliance against the these requirements. Nonetheless, consistent with the decisions of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, DCP 1997 must still be the "fundamental element in, or a focal point to, the decision-making process". The question to be answered is whether the changes to the building better achieve the objectives of the DCP than the existing building. 40 There is no disagreement that the application must be considered as a whole. However, the refurbishment of the building is not contingent upon the additional floor. There is also no disagreement on the architectural qualities of the design of the building, including the additional floor but I do not accept Mr Staas' evidence that an improvement to the appearance of the building could not be achieved if the additional floor were not added to the building. I also do not accept Mr Nash's evidence that the additional floor improves the unit mix to the extent that it justifies the additional floor. I am not convinced that the change of four studio bedroom apartments to 4 x 1 bedroom apartments would have an effect on the housing characteristics of the Paddington area. 41 I find that the proposal, with the additional floor, will increase the overall bulk of the building. In my view it would be inconsistent with cl 22 of the LEP in that it will not be sympathetic to and will detract from the Paddington South Conservation Area. From certain vantage points, particularly along Leinster Street and Regent Lane the additional floor will clearly read as an extra storey. On Regent Lane the proposal is not setback, and although this is a dead end service lane for traffic, it is part of the pedestrian network in Paddington. No photomontage was provided or required by the Court but from this lane the additional height will be visible and despite the attempts by the applicant, the disparity in scale with other buildings will be accentuated. This part of the building faces the surface car park where there is little opportunity to soften or screen the building. 42 The disparity in scale of the existing building and its context is also apparent from Regent Street along Leinster Street. This disparity will also be further accentuated by the removal of the roof and the additional storey. 43 The refurbishment of the building and the alterations to the façade will improve its appearance and break down the bulk at the lower levels but I do not find that overall the bulk of the building will be reduced by the additional storey. 44 The amenity of the rooms created by the new floor is also questionable with the useable area restricted to the central parts of the room by the limited available head height. 45 The experts recognise that if the consent to strata subdivide the building were implemented it would be difficult to achieve a refurbishment of the building. No evidence was provided to demonstrate that the refurbishment of the building was contingent upon the additional storey for its financial viability. The decision to proceed with the strata title application or an application to refurbish the building, either with or without the additional storey is an economic decision for the applicant, not the Court. 46 At a Mention on 9 December 2005, the applicant indicated that it opposes a condition that deletes the upper floor as it would not act on the consent. Council does not oppose the imposition of such a condition as it would provide the current owner or a future owner the opportunity to carry out the refurbishment works on the existing building if it so wishes. The refurbishment works are considered acceptable by all the experts and will improve the relationship of the existing building in the streetscape and the conservation area. On this basis, the application subject to the imposition of a condition (see condition 15) that deletes the additional floor warrants approval. Orders

1. The appeal is upheld 2.The development application for alterations and additions to an existing residential flat building at 47 Bent Street, Paddington is approved subject to the conditions in Annexure "A", including a condition that proposed level 3 be deleted. 3. The exhibits, except exhibits J, O and 6 may be returned. 4. No order as to costs

      Annelise Tuor
      Commissioner of the Court

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