Edam Properties Pty Ltd v The Council of the City of Sydney

Land and Environment Court (NSW)|2020-02-20|Before: Exhibit J

Judgment

Edam Properties Pty Ltd (the applicant) has appealed the Sydney City Council's refusal of its development application D/2018/1284 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The application seeks consent for the change of use of an existing terrace from residential accommodation to a boutique hotel with 10 rooms (the development).
The site is located at 136 Burton Street, Darlinghurst. The terrace was built prior to 1885, and is a pair with 138 Burton Street. It has a primary street frontage to Burton Street and there is a secondary frontage to a small laneway between Victoria Street and Hardie Street called Hayden Place (the site).

The development

The amended proposal, as reflected in the plans Exhibit J includes the following works: 1. Demolition of the rear ground and first floor of the existing terrace. 2. Demolition of rear car port, roller door, storage shed and WC. 3. Internal fitout of the remainder of the existing terrace to comprise of a foyer and reception at ground level, 1 hotel room at first floor level, and storage within the attic. 4. New part 2 and part 4 storey rear additions will comprise of one hotel room, accessible WC, loading space and bin storage at ground level, with 3 hotel rooms per floor across Levels 1-2 and 2 hotel rooms on Level 3. The addition includes a lift and fire stairs.

The locality

The site is located within the Oxford Street and Victoria Street Heritage Conservation Area (C12) (HCA). Under the Sydney Development Control Plan 2012 (DCP), the terrace is identified as a contributory building within that conservation area. The Darlinghurst West Locality Statement (Locality Statement) applies to the site and recognises a variety of residential buildings within the locality. It describes a residential precinct to the north (Kirketon Road, Farrell Avenue and Clapton Place), where the predominate character is taller buildings in a landscape setting, and "the main activity centre" or "retail spine" between Darlinghurst Road/Victoria Street and Burton and William Street where the site is located.
The Locality Statement provides the following Principles: 1. Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. 2. Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. 3. Maintain the vertically articulated small lot pattern and low street wall height along Victoria Street. 4. Provide awnings along Victoria Street, Darlinghurst Road and Burton Street. 5. Maintain the predominant street setback and alignment of rows and areas with a consistent character. 6. Formalise the existing informal through-site pedestrian link in any development of the St. Johns Church site and adjoining car rental site. 7. Promote active commercial and retail building frontages facing Green Park and buildings on Burton Street. 8. Encourage ground level retail and commercial uses along Victoria Street, for example, galleries and medical suites. 9. Encourage entertainment uses above ground level on Darlinghurst Road and Victoria Street (between Liverpool and William Streets). 10. Encourage outdoor dining for restaurants and cafes along Victoria and Burton Streets.
While the Council accepts that Principle (g) is achieved by the development, the satisfaction of Principles (b), (c) and (e) remains in issue. In that regard, the Council contends that the proposed development presents as 4 storeys when viewed from the adjacent properties at 138 Burton Street and 44 Hardie Street and the laneway, Hayden Place. According to its evidence, this results in an overbearing impact on the adjacent dwellings which is inconsistent with the character of the HCA, and detracts from the significance of the contributory building.
In order to assess the development's impact on the character of the HCA and the contributory items, it is first necessary to identify the area under review.
The area to be considered is bounded by Liverpool Street to the north, Hardie Street to the west, Victoria Street to the east and Burton Street to the south. Mr Brian McDonald, the Council's heritage consultant is of the opinion the predominate scale in the block is two storeys, and "the pattern of built forms 'establishes a fine grain'" (Heritage joint report - Exhibit 4, pp 3-4). In considering context, however, I agree with the applicant's heritage expert, Mr James Phillips that the taller buildings on the western side of Hardie Street and the eastern side of Victoria Street must be taken into consideration as they terminate the vistas along Hayden Place and these buildings greatly contribute to the character of this part of the HCA. The built form survey of the locality, prepared by Mr McDonald (Exhibit 4, Figure 1), shows the character to be quite mixed which is consistent with my observations during the site view. The site is immediately adjacent to a four-storey residential flat building marking the corner of Hardie and Burton Street. The corner of Hardie and Liverpool Street is also marked by a four-storey residential flat building.
Buildings in the block between Hardie and Liverpool Street range in height from three to six storeys. These buildings form the termination of the vista along Hayden Place when looking west from Victoria Street. When viewed in the opposite direction, the view along Hayden Place is terminated by the Garvan Institute buildings, well over nine storeys and opposite Hayden Place, and six storeys to Victoria and Burton Streets. The character of the area is also tempered by a row of two-storey terraces to the east along Burton Street that turn onto Victoria Street.
Because the bulk of the proposed development will be at the rear boundary of the site to Hayden Place, its impact upon the laneway, and the pattern of built form presenting at the rear for the rest of Hayden Place is relevant to character. The southern side of Hayden Place is characterised by the rear wings of the terraces separated by passageways and set back from the rear boundary. Numbers 136 and 144 have two-storey rear wings to Hayden Place. Apart from No 44 Hardie Street, there are no other four-storey buildings backing onto Hayden Place and there will only be three 3-storey buildings when the hotel at 255 Victoria Street is completed. After observing the existing built form in the rear laneway, I accept as Mr Phillips suggests that: "The built form analysis in Figure 1 coupled with the 12m height limit clearly anticipates buildings higher than two storey terraces in appropriate locations."
Notably, the Statement of Significance for the HCA gives the laneway little prominence: "Hayden Place A small lane between Victoria and Hardie Street Mixed development - Rating C"
The laneway was assessed in Weir Phillips Heritage Review of Selected Streets in Darlinghurst, commissioned by the Council in 2008 (Exhibit 3). This report relates the findings of the earlier City of Sydney City Plan Review Heritage Project - Heritage Review of Selected streets within Darlinghurst carried out by Weir and Phillips Architects and Heritage Consultant between April and November 2007. The purpose of the review was to consider the history and potential heritage significance of a study area comprising a part of Darlinghurst not incorporated within existing conservation areas. At page 58, the report describes Hayden Place as being: "a narrow laneway that runs behind properties fronting the southern part of Hardie Street and part of Victoria Street. There are two entrances from Hardie and one from Victoria Street. The land has sandstone curb and guttering on one or both sides and rises and falls with the terrain. The streetscape is undistinguished and is comprised of the rear and sides of buildings and yards".
Following assessment, Hayden Place was not listed in the Council's Proposed Streets and Laneway Maps (Map).
Although Hayden Place does not specifically feature in the Map, the impact of the proposed development on the laneway, and its contributory value in the HCA was a particular focus of the Council's evidence in the proceedings.
In addition to the expert evidence from the identified heritage experts, the Court received expert evidence from the town planners, Mr Terry Byrnes and Mr Matthew Girvan and the urban designers, Mr Geoff Baker and Ms Julia Pressick.

The planning framework

The Amended Statement of Facts and Contentions dated 27 November 2019 (ASOFC) sets out the statutory framework. The following controls apply:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Sydney Local Environmental Plan 2012
Sydney Development Control Plan 2012
City of Sydney Interim Floodplain Management Policy
City of Sydney Tree Management Policy 2013
City of Sydney Urban Forestry Strategy 2013
Australian Standard AS4970-2009 - Protection of trees on development sites
City of Sydney Guidelines for Waste Management in New Developments 2018
City of Sydney Development Contributions Plan 2015

The relevant clauses of the Sydney Local Environmental Plan 2012 (LEP) are reproduced below. 2.3 Zone objectives and Land Use Table … (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. … 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square - (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. Note. No maximum height is shown for land in Area 3 on the Height of Buildings Map. The maximum height for buildings on this land are determined by the sun access planes that are taken to extend over the land by clause 6.17. (2A) Despite any other provision of this Plan, the maximum height of a building on land shown as Area 1 or Area 2 on the Height of Buildings Map is the height of the building on the land as at the commencement of this Plan. 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of the City of Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following - … (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters - (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design. …

Contentions

The ASOFC also lists the Council's contentions, namely:

Contention 1: Height - The proposed number of storeys exceeds the planning controls and this result in an unacceptable built form and impacts.
Contention 3: Site layout and setbacks - The proposed site layout and setbacks of the development are inconsistent with Council's controls and result in an unacceptable built form.
Contention 4: Heritage - The proposed development is out of character with the heritage conservation area and detracts from the significance of the contributory building.
Contention 6: Amenity - The proposed development will result in unacceptable amenity impacts to neighbouring residential properties.
Contention 9: Design excellence - The proposed development is inconsistent with the design excellence provisions of the Sydney LEP.
Contention 10: Inconsistent with objects of the Act - The proposal is not considered to promote or co-ordinate the orderly and economic use and development of land and is not in the public interest.

The development is numerically compliant with the floor space ratio (FSR) and maximum height of the buildings controls in the LEP. (It achieves the FSR control of 2:1 under cl 4.4 of the LEP, and the maximum 12m height of buildings control set out in cl 4.3 of the LEP). The issue about height arises because the development exceeds the maximum height in storeys control in cl 4.2.1 of the DCP.
Put simply, the height in storeys control in the DCP is to be read with the height in buildings controls in the LEP to determine the appropriate height of the building on a site.
Clause 4.2.1.1(1) of the DCP provides "development must not exceed the maximum number of storeys, as shown on the Buildings height in storeys map". The stated objective of the clause is "to ensure the height in storeys and street frontage in storeys reinforces the existing or future neighbourhood character". The Building height in storeys map identifies the site as 2 storeys, and cl 4.3 of the LEP permits a 12m building. Therefore, the Council contends, amongst other things, that the proposed 4-storey development exceeds the control by 2 storeys and is inconsistent with the scale and form of the existing terrace on the site and the other terraces within the row. This results in an adverse impact upon the HCA and a development that is inconsistent with cl 4.2.1.1(2).
It is the Council's position that the maximum height of a building for this site is the existing 2-storey terrace built form (noting an attic is not defined as a 'storey'). A built form that the Council contends is anticipated by the DCP and could be accommodated at the rear in a 2-storey development with attic to Hayden Place.
It is also contended that the development does not achieve Objective (a) of Part 4.2.1.1 of the DCP that relates to Residential flat buildings, Non-residential and Mixed use development. This clause provides that the storeys control ensures that height in storeys and the street frontage height in storeys control reinforces the existing and desired neighbourhood character for the area.
It is contended that the development's presentation as 4 storeys when viewed from adjacent properties at 138 Burton Street and 44 Hardie Street is inconsistent in scale and form: clause 4.2.1.1(2) of the DCP and cl 6.21(4)(a) and (4)(d)(v) of the LEP.
It is contended that the development by its design and scale does not respect the original and characteristic built form of the terrace and that it dominates the terrace row contrary to clause 3.9.7(3)(a) (Contributory buildings) of the DCP.
It is contended that the development does not comply with clause 4.1 of the DCP. This section provides objectives and provisions related to the height in storeys and the street frontage height in storeys. These controls work together with the building height in metres control in the LEP which establishes the maximum permissible height for every property. In particular the Council submits that the development offends objective (c) of this section which seeks to "retain and conserve the principle building form and its relationship to the street for heritage items and contributory buildings in heritage conservation areas".
It is contended that the development does not comply with clause 4.1.4 of the DCP which requires alterations and additions to a terrace to protect and respect the traditional character of, and heritage significance of the HCA and contributory buildings by:

Ensuring additions are of an appropriate scale and appearance and relate to the scale and character of the existing building and the street;
Minimising alterations of the original building and respecting the uniformity of an intact pair, group or row of buildings.

It is contended that the development is not compatible with the terrace row because it provides an overbearing presentation of a 4-storey wall to the rear yard of the adjoining terrace and to Hayden Place which is not sympathetic and contrary to clause 3.9.6(1) (Heritage Conservations Areas) of the DCP.
It is contended that the development offends the objective in clause 3.1.1 of Part 3 of the DCP which seeks to ensure lanes are retained and enhanced.
It is contended that the development generates unacceptable amenity impacts for the adjoining residential development in terms of overshadowing contrary to clause 4.1.3.1(2).
Ultimately, the Council contended that the development does not adequately conserve the environmental heritage of the City of Sydney and is thereby contrary to cl 1.2(2)(k) and cl 5.10(1)(a) and (b) of the cl 5.10 and the design excellence provisions in cl 6.21 of the LEP.

Decision

For the reasons that follow, I have decided to grant development consent to the amended application on a conditional basis. The essential facts are set out below.

The site

Figure 1 below, taken from the Council's ASOFC (Exhibit 1), shows the site shaded green. The land has an area of 210m2 and is generally regular in shape, except for its eastern boundary which encompasses an existing WC and widens towards Hayden Place.
It is located opposite Green Park, and as noted above is close to the intersection with Burton Street and Hardie Street to the west and Burton Street and Victoria Street to the east.
The existing terrace is described in the ASOFC as a mid-Victorian terrace with modern additions at the back. It is currently used as single dwelling. It has an attic space with a front dormer window and rear roof extension. The rear yard has a parking space, garden, two water tanks, and a storage area and roller door adjacent to Hayden Place.
The terrace and its pair at 138 Burton Street are described in the Heritage Impact Statement which accompanied the DA, prepared by heritagesolutions as "…exceptionally well crafted and intact inside and out contributory items to the heritage conservation area" (Exhibit D). The parties' heritage experts require the conservation of original terrace being; the front two rooms on the ground floor, and first floor. They accept that the two-storey rear addition at 136 Burton Street is much later than the original terrace and detracts from its contributory value. Moreover, they agree that the replacement of this modern addition at the rear is not an issue provided the additions are complementary and subservient to the front part. This outcome is also mandated by the Council's DCP controls which require any new addition within the rear yard to be subservient to the Burton Street dwelling.
The original proposal was not subservient to the Burton Street dwelling so it was amended during the appeal. The height of the building was reduced to the maximum 12m height limit for the site, and the separation between the original terrace and the new extension was increased to establish an appropriate scale and relationship to the contributory item, and the other terraces in the row. These changes to the development have satisfied the experts and the Council in relation to the presentation of the development from Burton Street. In that regard, the planners now agree that "…the new rear addition will have negligible visibility from the park opposite and will not be visible from Burton Street" (Planners' Joint report - Exhibit 5, p5, par 14). The heritage experts are content "the proposed four storeys building at the rear of the site will have low visual impact when viewed from Burton and Green Park" (Exhibit 4, p3, at 3.3).
Needless to say, these amendments did not overcome the Council's other contentions including the development's inconsistency with the scale and form of the existing terrace on the site and the other terraces in the row. Nor the adverse amenity impacts on the adjacent properties contrary to clause 4.2.1.1(2) of the DCP and cl 6.21(4)(a) and (4)(d)(v) of the LEP.
During the site view held at the commencement of the hearing, after inspecting the site and the locality, I was invited into the home of the objector at 138 Burton Street and some of the unit owners in the residential flat building at 44 Hardie Street.

138 Burton Street

Mr Tandy, the owner of the adjoining terrace at 138 Burton Street gave his evidence to the Court from his rear yard. This property has a number of trees located within the rear yard including a Chinese Hackberry tree and three Bangalow Palms. Mr Tandy said that he is concerned about any loss of sunlight into this part of his yard and a sense of enclosure from the development adjacent to his side boundary. Accepting that the principle outlook from the rear of 138 Burton Street is north to the lane, the evidence is that between 11am and 3pm the development will cast additional shadows to this area of his yard. (Although, as Mr Girvan states in the joint report, the visual and solar impacts of this proposal will be much less than any new 5-storey development that could be approved on the opposite side of the laneway under the Council's current controls).
In an effort to reduce the bulk, the additional shadow and the visual impact of the proposed building when viewed from Mr Tandy's rear yard, the applicant amended the plans. These amendments, however, did not satisfy the Council's urban design expert, Ms Pressick. She believes the proposed 4 storeys is 13.5m in length from the ridge adjacent to Hayden Place, and will be readily visible from the neighbouring courtyard at 138 Burton Street. Moreover, that the 2-storey step down offered for a length of 5.7m will result in the courtyard of 138 Burton Street being adjacent to the full 4 storeys in height when adjacent to the central portion of the development (including fire stairs) (Exhibit 5, p6 at par 26). Ms Pressick believes that a height in storeys building adjacent to the courtyard would not result in the same overbearing impact. In her evidence, she refers to the solar impact study provided in Attachment 4 of the joint report to demonstrate that a compliant built form of the new addition that is part 3 storeys and part 2 storeys with an attic to Hayden Place can be achieved.
The photographs below marked Figures 8, 9 and 10 from the ASOFC capture the existing view through the vegetation from 138 Burton Street across the site to the west showing residential flat building at No 44 Hardie Street.
Further east along Burton Street there is a row of three terraces, with Nos 140 and 142 used as single dwellings and No 144 is a boarding house.

44 Hardie Street

Figure 10 above shows the 4-storey Inter-War residential flat building known as No 44 Hardie Street immediately to the west of the site. This building is also a contributory item within the conservation area. Clause 5.10 of the LEP requires, before granting development consent in respect of a heritage conservation area, that I consider the effect of the proposed development on the heritage significance of the area concerned and any contributory items. Clause 3.9.6 of the DCP requires that development within a heritage conservation area is compatible with the surrounding built form and urban pattern and the development has an appropriate response to the contributory items and the conservation area.
As Mr McDonald states in the joint report, a significant characteristic of the block is that higher buildings occur at the corners - three storeys at the north east corner and four storeys at the northwest and southwest corners. The adjoining flat building to the west of the site, No 44 Hardie Street, is one of the significant characteristics of the block to which Mr McDonald is referring. It is built to the side boundary for a length of 12.15m and has a central light well of 6.3m adjacent to the subject site. This light well services 8 units (2 per level).
Three of the residents from this flat building attended the site view and gave evidence from their units about their concerns. Collectively, they believe that the new building will have an overbearing impact on their units - all of which rely on their northern windows facing the light well for daylight and outlook from their living rooms. They believe that the original 1.807m setback from their property boundary is not sufficient to alleviate these solar/daylight impacts. Accepting that Unit 6 is the most affected in terms of loss of direct solar access at midwinter, the applicant has amended its plans to address the issues raised by the other objectors who reside at the upper levels. Drawing AR-201 in Exhibit J now shows the proposed building pulled further back from the light well and side boundary - a minimum of 2.085m, in order to provide an open area on the site to remove the original wall from the viewshed of the northern windows of No 44 Hardie Street. By cutting out this part of the hotel room, a view is also opened up from the south facing living room windows as well, by pulling back the blocking line that would otherwise be the view blocking line. Remembering, in any event that there are presently walls against this boundary so there is no net improvement at the lower levels.
On the opposite side of Hayden Place is a 2-storey auto repair shop with dwelling above which fronts onto Hardie Street.

The existing neighbourhood character

After having walked along the laneway and observed the area, I agree with the applicant's urban design expert Mr Geoff Barker's description of Hayden Place as a narrow laneway with no street addresses - devoid of trees, and only providing vehicle access and a pedestrian shortcut. In fact, he is of the opinion that the application of the term streetscape to the laneway is a "misnomer" (Exhibit 5 p11 at par 54). With that in mind, it is perhaps not surprising that this laneway is left out of the Council's list of lanes to be acquired - as identified in the Proposed Streets and Laneways Map - and is not earmarked for any upgrade as part of Council's future public domain works (Exhibit 5).
Ms Pressick's evidence is not dissimilar to that of the applicant in relation to character of the laneway. She describes the laneway as consisting of predominately single storey rear roller doors adjacent to the boundary, together with the northern face of No 44 Hardie Street to the west at 4 storeys, and the 2 and 3-storey side wall of 267 Victoria Street which fronts onto Victoria Street to the east. She also acknowledges that across the laneway there is an existing 2 storey auto garage, which presents as 2.5 storeys at the rear. (Noting, that this site has submitted a DA for alterations and additions of 5 storeys in height for use as a residential flat building and shop, which is the subject of an appeal to the Court). Further down the laneway, she observes there is a single storey cottage.

Streetscape of Hayden Place

Despite this description of the laneway and an assessment that the streetscape of Hayden Place is not highly consistent, Ms Pressick believes that the row of townhouses of which the site is part is a defining feature of the built character of this neighbourhood. As such, she says it offers an element of consistency and a clear pattern when viewed from Hayden Place (Exhibit 5, par 31). It seems that she agrees with Mr McDonald's assessment that the pattern of built form establishes a "fine urban grain" (Exhibit 4 at par 3.7). The term "fine grain" is referred to in clause 4.2.4 of the DCP, and defined in the Glossary of Terms to mean: "a small scale, generally lower cost spaces providing for a diverse range of activities and users. The fine grain spaces include small retail tenancies with street access including basement and first floors, as well as offices, studio spaces or other activities with access inside arcades, underground connections, through office foyers or other buildings. Fine grain spaces often front or are accessed from smaller streets or lanes, and are within lower grade office or mixed use buildings, generally in the less expensive precincts. The fine grain spaces with their mixed ownership and leasing patterns enable more organic changes to occur throughout the City and support lower cost and start up business that contribute to a vibrant and active City."
This description of the streetscape of the laneway, as I have already stated, does not accord with my observations of the laneway. There is no real opportunity to discern the row of townhouses from from the laneway behind the roller doors, blank walls and patchy vegetation and flat roof additions - as Mr Byrnes and Mr Baker suggest. And, while the site is earmarked for active commercial and retail street frontages, perhaps "a fine grain use" facing Green Park and Burton Street, under the DCP controls and the Locality Statement (Principle (g), Clause 2.4.12 of the DCP), on the ground the Council's designated 2-storeys DCP control plus attics is just not realised at the rear of the site or the adjoining terrace row. Therefore, I agree with Mr Baker that the visibility of the rear of the site occurs in the context of No 44 Hardie Street, which is considerably higher and has a 4 storeys 15m height control, and the site opposite which has an auto mechanic business built at 2 storeys and a side wall extending down the lane for several metres.
In terms of existing built form, abutting the site to the west is the 4-storey flat building greater in height than the proposal, further west is the Sydney Jewish Museum (3 storeys), and to the east are shops and multi-storey hospital buildings. In that context and mindful of what you can actually see from the laneway, in my opinion, it is inaccurate to describe the terrace row as providing an element of consistency of built form and a clear pattern when viewed from Hayden Place.
That said, I do accept that the terrace row provides a consistent streetscape form to Burton Street. Importantly, this development appropriately maintains that consistency at the primary street frontage in accordance with the Council's controls in cll 5.10 and 6.21 of the LEP, the Principles of the Locality Statement, the recommended management guidelines in the Statement of Significance, and the DCP provisions - clause 4.1.1 objective (c), clause 4.1.2(2) of the DCP (building setbacks).

Acceptability of the built form

The proposed 10-room boutique hotel is a permitted use on the site. The amended design meets the statutory maximum height limit of 12m and thereby demonstrates that 4 storeys at the rear of the property can be achieved under that control.
The development also achieves the FSR control which is a mechanism for controlling the anticipated intensity on the site.
As Mr Baker states in the joint report, a permitted "use" is an important urban design consideration because it helps establish streetscape character through building typology and design. It is also determinant of the characteristics of the population in the immediate context and has a variety of other impacts such as volumes of pedestrians and vehicular traffic and parking. In this case, bearing in mind its location in the HCA within "the main activity centre" or "retail spine" between Darlinghurst Road/Victoria Street and Burton and William Street, the proposed use is highly desirable and it is likely to bring economic benefits to the local economy consistent with the City's overall planning strategies. It promotes the orderly and economic use and development of the land which is objective (c) of s1.3 of the EPA Act.
In this case, the Council's DCP controls conflict with the LEP in terms of height and the storeys controls for the site. And, if the DCP were permitted to override the LEP in the event of inconsistency and new construction at the rear of the site was limited to 2 storeys, the number of hotel rooms would be halved from 10 to 5. I accept, as the applicant submits that it may be unlikely that a 5-room hotel would be viable.
Moreover, the LEP provides the context for a planned future. In doing so, as Mr Byrnes told the Court, it retains various elements of past development and limits the substitution of otherwise desirable new works. In this instance, the development is consistent with a variety of residential building heights in the HCA.
The proposed development varies in height between two and four storeys. Therefore, as a proposal, it is substantially within the maximum development height limits and it is not unexpected, subject to any relevant qualifications remaining under the DCP. Mr Byrnes' expert evidence is that "substituting a DCP maximum height limitation of two storeys in place of a contradictory height control in the LEP would mean an application of the wrong planning standard in this case". In his assessment, "…a limitation by a DCP height that restricts development to only half the LEP height limit permitted and thereby limits floor space by about half has the consequence of frustrating the limits of any reasonable planning expectation in the LEP. A 2-storey height control plus attic which might ordinarily lead to a 9m height limit is plainly inconsistent with a 12m height control."
Ultimately, there is an inevitable requirement for me in this case to carry out a merit assessment under s 4.15(1) of the EPA Act, with a focus on the DCP provisions to determine whether a 12m high building is appropriate in this location.

Findings

The height of the existing terrace is in the order of 10m; therefore it already exceeds the notional 9m control of two storeys (Tcpt, 19 February 2020, p 17(34-50)). In that circumstance, s 4.15(3A) of the EPA Act invites flexibility in applying DCP provisions which are more onerous than other standards and allows reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. Although s 3.43(5) of the EPA Act provides that in the event that a provision of a development control plan is inconsistent or incompatible with an environmental planning instrument, the environmental planning instrument will take precedence over the development control plan - there is no inconsistency in this case. I understand that the DCP storey provisions work together with the building height controls to determine the appropriate height in this case. The objectives of Height of buildings control in cl 4.3 of the LEP in particular objective (1)(b) seeks to "ensure appropriate height transitions between new development and heritage items and buildings in heritage conservations areas or special character areas".
The height control sets a maximum and I accept that this cannot always be achieved across the whole of the site. However, as Ms Pressick observes, the main impacts of the height of this proposal are at close range when viewed from the adjacent properties. While I agree with the Council's experts that the rear extension will be visible along Hayden Place and from the intersections with Hardie Street, Victoria Street and from Victoria Street when viewed over the top of the single storey terrace corner with Hayden Place, this does not impact adversely on the contributory items being the terraces and No 44 Hardie Street or the HCA. This is because I accept that the laneway offers no consistent streetscape and the heritage focus is on the original terrace as it presents to the primary frontage at Burton Street - which is maintained by this development. As Exhibit G demonstrates, there are a number of different Heights of buildings and storey controls proximate to the site along both sides of the laneway and within the area under review. Therefore, a variety of building heights is anticipated within this area, albeit tempered by the LEP and DCP controls in this heritage conservation area including heritage contributory items. The development application for alterations and additions for a residential flat building and shop on the auto mechanic site opposite is evidence of this development opportunity.
And while it is fair to say that the proposed height of the development does not maintain the lower mid-block heights which are distinct from higher built forms on the corner blocks, this is not a basis to refuse consent to an otherwise permissible development. In addressing the acceptability of the built form, including when viewed from the laneway, Mr Phillips said that the proposal successfully conserves and recovers the principle form and character of the terrace in conjunction with adding a semi-detached building behind containing the bulk of the accommodation of the hotel. In his words, the proposal has been "…carefully designed to complement the residential flat building to the west and demonstrates contextual design excellence, or in other works it is 'well mannered'".
I accept his expert assessment as I do not believe that the impact of the contributory building form presenting to the rear of the site will be severe as suggested by Mr McDonald (Exhibit 4, par 3.28). In my assessment of the evidence and based on my observations at the site view, the proposed part 2 and part 4 storey building occupying the rear portion of 136 Burton Street will not detract from the neighbourhood character, nor diminish the contributory value of the existing terrace house and present as being inconsistent with the scale and form of the surrounding buildings in the HCA.
After considering the effect of the proposed development on heritage significance of the contributory items and the HCA as required by cl 5.10(4) and the heritage provision more generally in the context of the Darlinghurst West Locality statement and having regard to the outcomes expressed in that statement and supporting principles, the statement of significance, Exhibit 5 and the evidence in relation to the relevant provisions in the LEP and DCP, I am satisfied that the amended design does not adversely impact the HCA or the contributory items. The applicant has, in my assessment, satisfactorily improved the interrelationship of the built form and scale of the proposal with its immediate neighbours within the HCA. The original terrace is maintained and I accept Mr Phillips' expert assessment that the amended development is now well-mannered in its design.
The evidence is that the laneway is very much a secondary address to this development and every development backing onto it. Although Ms Pressick believes that the terrace form offers some consistency in the streetscape, the larger anomalous flat building at No 44 Hardie Street must also play some part in determining an appropriate scale of development to the laneway and this site. With that in mind, I do not accept that the building as proposed will detract from the laneway character now or as desired in the future accepting that the height in storeys control is intended to reinforce the existing neighbourhood character and the future neighbourhood character by maintaining heights of 2 storeys for the site and the row of terraces. This development achieves that outcome where it counts at its primary street frontage to Burton Street. In the present circumstances, the development adds to the existing HCA, which is characterised by its variety of residential building heights.
The Council maintains that the laneway behind the site should be retained and enhanced in accordance with the objectives of the general provisions of clause 3.1.1 the DCP. Therefore, any development needs to offer a scale and form which is not inconsistent with predominate building setbacks, and alignments of the terrace row facing Hayden Place: (clause 2.4.12 of the DCP). I am satisfied for the reasons outlined by Mr Byrnes and Mr Baker in their joint report and oral evidence to the Court that the proposed development does complement the contributory items and the laneway character. It adequately conserves the environmental heritage of the City of Sydney and is thereby consistent with cl 1.2(2)(k) and cl 5.10(1)(a) and (b) of the LEP.

Clause 6.21 of the LEP

The objective of cl 6.21 of the LEP is to deliver the highest standard of architectural, urban and landscape design. And, I cannot grant consent to this development unless I form the opinion that the proposed development exhibits design excellence. In making that assessment, the clause directs me to have regard to specified matters in subcl (4)(a)-(d). Ms Pressick considers that the proposal does not satisfy the following design excellence considerations: • (4)(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, • (4)(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, • (4)(d)(iii) any heritage issues and streetscape constraints, • (4)(d)(v) the bulk massing and modulation of buildings, • (4)(d)(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual acoustic privacy, noise, wind and reflectivity …
Ms Pressick addresses these matters in detail in the joint report (at p 22, pars 110-125) and during concurrent evidence in Court. Having considered the provision and her expert view, I make the following comments.
The ASOFC records that on 28 August 2017, pre-DA advice was provided to the applicant in relation to a proposal for a 17-room hotel. In this advice, Council indicated that the new addition within the rear yard needed to be subservient to the Burton Street dwelling, and that the submitted proposal did not exhibit design excellence in accordance with cl 6.21 of the LEP.
The amended proposal has reduced the rooms to 10 and lowered the height of the building so that the extension is compliant and cannot be read from its primary address at Burton Street. The heritage experts are content with this aspect of the design. When viewed from the limited opportunities afforded from the public domain from the either the front or from the rear of the site, it is fair to say that between the retained building and the additional development works, there is no serious adverse height relationship. The adjoining neighbour at 138 Burton Street has already substantially been built to the length of the common boundary, and will retain further visual mitigation of the proposed development's height impacts because of the current extensive landscaping screening already established in his site at substantial height and due to the amendments of the development on this boundary. In the foreseeable future, at the very least, the DCP anticipates two floor levels of development as one occupied floor above ground floor garage and vehicular site access immediately off the adjacent laneway. As a consequence, this would be further mitigation of height over the length of this modulated common boundary wall as proposed. The premises adjoining at No 44 Hardie Street makes an equally important heritage contribution. Again, the development has been amended to address this building which is built to the boundary (except from its light well). It has been realigned and set back further from the light well and common boundary to improve solar access and views from the flat building's upper levels. This is achieved by reducing the proposed bathroom layout at the subsequent three floor levels above and increasing the already stepped boundary setback further above the ground floor. The average depth of the proposal's side setback above the ground floor well exceeds that of No 44 Hardie Street the break in the midpoint of the proposal and No 44 Hardie Street is of identical length and near identical location both breaks are 6.3m long and misaligned by only 0.3m. The proposal's courtyard above ground is significantly larger than the light well at No 44 Hardie Street and I accept it is unreasonable to expect that the subject site should further compensate for the inadequacies of the neighbour's light well.
Unit 6 which is located in the southern end of the first floor and adjacent to the light well has its only living room window facing north. This window is 1200mm in size and currently receives solar access at midwinter between 9am and 10.30am. This solar access would be eliminated by the proposed development. The increments of solar access achieved over that period are set out in the joint report.
The DCP controls are not met midwinter in the living room in Unit 6, as its only window to that room which faces north into the unlandscaped open area is set back to assure its ultimate retention as a light well. The unit shows adjoining windows serving the unit entrance foyer and a bathroom window both facing east. Clause 4.2.3.1(2) of the DCP requires that units in neighbouring developments must achieve a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June onto at least 1m2 of living room windows and a minimum of 50% of the required minimum area of private open space area. Clause 4.2.3.1(3) requires that new development must not create any additional overshadowing onto the neighbouring dwelling where the dwelling currently receives less than 2 hours direct sunlight to habitable rooms and 50% of the private open space between 9am and 3pm on 21 June.
Unit 6 currently receives direct solar access to it living room window for 90mins between 9am and 10.30am at 21 June, with the amount of direct solar access over 1m2 between 10am and 10.30am. The proposed development results in an elimination of all solar access to that living room window at midwinter, contrary to clause 4.2.3.1(3) of the DCP as additional shadow is created. Unit 6 has no private open space. There is no dispute that the loss of the solar access to the living room is, as Mr Girvan states in the joint report, a detrimental upon the amenity of the Unit 6. While it has a study looking to the park from a south facing window, this does not offset the loss of direct midwinter solar access to the unit. This result does not enhance that residential amenity and is thereby inconsistent with objective (a) of clause 4.2.3 (Amenity) of the DCP. This adverse solar aspect is the remaining contention. As Mr Baker points out, Unit 6 currently looks at an oblique angle to a blank wall approximately 1.5m distant. Under the proposal, this boundary wall will be reduced to one storey, therefore Unit 6 window may lose the one and half hours of midwinter sunlight it currently receives but it will enjoy a much improved outlook.
With respect to the solar access provisions in clause 4.1.3 which deal with single dwellings, terraces and dual occupancies in the DCP, Mr Girvan explained to me that if they applied, the window of Unit 6 is within 1.5m of the boundary so the effect of the provision is to change the solar access control to a daylight control. Therefore, in this instance you are looking at daylight compliance rather than solar access. You then have a prescriptive measure, which is to say within 2.4m of the window you are required to be set back 900mm. In this case, the prescriptive measure is met as the distance is 2.4m from the north window as there is no built form to the other boundary.
Then, to complicate matters he was referring to cl 4.21 (which applies to residential flat buildings and mixed use development) and explained that Unit 6 has less than 2 hours of solar access and it should not be reduced further between 9am and 3pm on the relevant date.
Nonetheless, his final evidence was that "I read 6 as a stand-alone provision and I also read 5 and 6 tied together in circumstances where there is overshadowing, but also that 6 can stand alone" (Tcpt, 20 February 2020 p 68(30)).
That said, I am satisfied for the reason outlined by the applicant's experts that the impact on Unit 6 on balance is acceptable and not reason to decide that the building does not exhibit design excellence in accord with cl 6.21.
I accept that a substantial loss of living room amenity would not normally be expected to rely on merely the retention of a patch of brief sunlight being retained. Even less so in this case where the overall amenity provided by the living room window is addressed by a separate dedicated living space with a full room width of windows overlooking the park opposite. I accept as, Mr Byrnes states in his evidence, that the comparative amenity values between the two living areas overall would suggest that the normal living room is generally unlikely to provide the only, or even preferred, living area attraction and reduced sunlight would be of very small consequence.
In relation to the light well more generally, the reduction in height of the boundary wall on the subject site from the current two storeys to one storey will actually increase the available daylight to the living rooms on the first two levels and improve the outlook for the second storeys units. The evidence is that the living rooms on the top two floors will not suffer a loss of daylight or outlook which is meaningful or significant. After a consideration of all these impacts and benefits against the DCP controls, I do not believe it is reasonable to refuse consent to this development because of the impact for Unit 6.
I do not accept that the evidence supports Ms Pressick's criticisms of the amended proposal. Mr Byrnes and Mr Baker's evidence to my thinking more accurately assesses the proposal against the provisions in cl 6.21 of the LEP. In my assessment, there can be no complaint that this development offends the building setback provisions in clause 4.2.2 of the DCP as it is generally consistent with existing, adjacent patterns of building setbacks on the street (and laneway) and is consistent with the building setbacks in the heritage conservation area more generally. The fact that the DCP applied setback provisions that might lead to courtyards at the rear of the site is not justified by the facts. Multiple individual site developments right up to or over the vehicle access afforded by a rear lane appear to have been the consistent redevelopment outcome to date. The proposal has the same zero setback and Mr Girvan and Ms Pressick accept the alignment of the new development to Hayden Place (Exhibit 5, p13 at par 69).

Clause 5.10 of the LEP

In this judgment I have earlier referred to cl 5.10 and my consideration of the effect of the development on the heritage conservation area and contributory items, against the heritage provisions in cl 6.21 the LEP and the provisions of the DCP and the evidence. Further to that I wish to emphasise that I am satisfied that the adaptive reuse associated with the boutique hotel and the proposed alterations will retain the primary frontage of the contributory item in accordance with clause 3.9.7 of the DCP. As such, the item will continue to contribute to the heritage conservation area. In my assessment, the development has been designed to respect the neighbouring buildings and the character of the area in a complementary way as required by cl 3.9.6 of the DCP in terms of:

(a) topography and landscape - (the agreed draft conditions satisfactorily deal with retention of trees and landscaping);
(b) views to and from the site;
(c) significant subdivision patterns and layout, and front and side setbacks;
(d) the type, siting, from, height, bulk, roof scape, scale, materials and detains of adjoining or nearby contributory items;
(e) the interface between the public domain and building alignments and property boundaries; and
(f) colour schemes - which are agreed.

Furthermore, I am satisfied for the reasons outlined already that the development achieves the outcomes expressed in the Principles of the Locality Statement. It will complement the contributory building within the HCA, including the streetscapes and lanes and importantly promote an active commercial building frontage facing Green Park as a building on Burton Street in accordance with Principle (g).

Conclusion

By way of conclusion, I note that by creating bulk adjacent to No 44 Hardie Street (the building on the corner), and behind the retained terrace on the site, the bulk created by the proposal is read with No 44 Hardie Street when viewed looking north on Hardie Street and when looking west along Hayden Place. In my assessment, the scale of the rear of the proposal is totally in keeping with the bulk and scale of its neighbour and following the amendments has an acceptable visual impact on the yards of the terraces to the east, Nos 138 and 144. The height of the proposal is typical of the residential flat buildings in the area. Where this occurs, it is characteristic, not detracting. I am satisfied that the proposed building respects the prevailing character of the area and street in terms of bulk, form, scale and height in accordance with clause 3.9.9(2)(b) of the DCP. The relationship of the terrace on the site to the much larger residential flat building at No 44 Hardie Street is unchanged. The addition is keep to the rear and any impact is confined to a laneway that has no consistent streetscape.
For these reasons, I believe that the site is an appropriate location for the proposed development. The parties have agreed the conditions of consent which they forwarded to the Court on 21 February 2020 and after review, I find them to be acceptable.

Orders

Accordingly, the Court orders that: 1. Appeal upheld. 2. Development consent is granted to Development Application No. D/2018/1284 (as amended) for demolition of rear existing terrace, construction of a new Part 2 and Part 4 storey addition, refurbishment and internal fitout of the interior of the building, and change of use to hotel at 136 Burton Street, Darlinghurst, subject to the conditions set out in Annexure A. 3. The exhibits are returned except for Exhibits 1 and J.

Senior Commissioner of the Court Annexure A (482 KB, pdf)

Amendments 04 May 2020 - Correction to typographical errors at [20] and [64]. 04 May 2020 - Correction of Hearing Dates on cover sheet - should read "19-20 February 2020". 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: 04 May 2020

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cited By (1)