Grdinic v Council of the City of Sydney

CASES CITED: Ireland v Cessnock City Council [1999] 110 LGERA 311; NSWLEC 250; Manzie v Willoughby City Council 1996 LEC 26

APPLICANT Mr J Strati, solicitor Avendra Singh Strati & Kam

LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, barrister INSTRUCTED BY Mr M Kelly, solicitor City Prosecutor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10473 of 2006 Susan Grdinic v Council of the City of Sydney 10078 of 2006

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 These two matters are appeals concerning premises at 175 Glebe Point Road, Glebe (the premises). One is an appeal against a refusal by the Council of the City of Sydney (the council) of an application for a building certificate for a roller shutter installed at the street frontage of the premises and the second is an appeal against an order by the council for its removal.

2 The premises are part of a row of terraces with shop fronts at the street level and one or two levels of residential or other accommodation above. They comprise 153 to 181 Glebe Point Road, Glebe and are specifically listed in the schedule of local heritage items to the Leichhardt Local Environmental Plan 2000 (LEP). This LEP is relevant planning instrument but is administered by the council as a consequence of local government boundary changes taking place after the date of promulgation of that plan.

3 The applicant has an approval pursuant to determination of Development Application 03/00528 for the conversion of the existing building to a mixed used development with a restaurant at the ground level and a dwelling at the upper levels.

4 The restaurant's approved trading hours are, on one version, from 8am until 12 midnight - Monday to Saturday and 8am to 10pm on Sundays and public holidays (but restricted to 11pm in another element of the notice of determination). For the purposes of these proceedings I will assess the appeals on the more generous extent of hours but express no opinion as to whether that is the appropriate position to take in any other aspect.

5 The premises are located on the eastern side of Glebe Point Road, on a gentle slope leading toward St John's Road on the southern side of St John's Road. The visual catchment from which the premises can be observed extends from some 70 or 80 m to the south on the opposite side, through to the northern side of the intersection of Glebe Point Road and St John's Road.

6 The development, which is the subject of both proceedings, is the unapproved installation of a full length white electrically operated roller shutter on the outside of the proposed new shop front. The roller shutter has no breaks or apertures in it.

7 Evidence was given informally on site during the view by Mr Russo, the husband of the applicant (and who I understood to be the builder undertaking or supervising the construction activities), that the roller shutter has been installed for reasons of security and it is proposed, if the building certificate application is granted, to remain in place for the purposes of securing the premises when they have been fitted out and are operating as a restaurant.

8 I was provided with a petition from a variety of persons associated with premises from virtually entirely within Glebe Point Road (but not confined to that0, together with statements which show that a number of acts of vandalism have taken place to shop fronts in Glebe Point Road in the general vicinity of the premises but not confined to the visual catchment of the premises.

9 The nature of the proceedings that have been brought - being a refused application for a building certificate resulting in an appeal to the Court and an appeal against an order to remove the roller shutter - provides a significant limitation on the discretions that I have to exercise in these proceedings as, there being no s 96 modification application under the Environmental Planning and Assessment Act 1979, I could not make a range of ancillary or different orders if I were minded to do so.

10 The matter that I am therefore left to determine (consistent with the process described by Bignold J in Ireland v Cessnock City Council [1999] 110 LGERA 311; NSWLEC 250) is whether the particular roller shutter, as installed, should be permitted to remain. It would be inappropriate, given that I have concluded that the roller shutter should be removed, that I offer any comment as to what alternative security arrangements might be appropriate to be approved by the council. This position is consistent with the decision of Bignold J in Manzie v Willoughby City Council 1996 LEC 26.

11 The council raises two broad reasons why the roller shutter should not be permitted. The first is on heritage grounds and the second, more generally, relates to the broad streetscape issues arising from part (c) of the Leichhardt Development Control Plan (the DCP). There is a stark contrast in the evidence given by Mr Rappaport, heritage consultant on behalf of the applicant, and Ms O'Brien, a senior planner employed by the council (giving evidence on heritage as well as other matters but conferring as part of the joint statement of experts with Mr Rappaport on the heritage matters).

12 The reasons why I have concluded the roller shutter should be removed are as follows.

13 I am satisfied that, given the stark difference between them (and particularly the evidence by Mr Rappaport - that because we are dealing with what is non-original fabric, it does not matter what you do below the awning [which is a statement of breathtakingly sweeping proportions]), I do not need to determine whether or not heritage issues would cause the roller shutter to fail, as I am satisfied that on general planning basis relating to the street scape, it is inappropriate.

14 The DCP, at C 1.6, sets out a number of design elements relating to shop fronts.

15 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, it is appropriate that I use the DCP as the focus and starting point for my deliberations. Cogent reasons are needed if I am to depart from the provisions of its development controls. The DCP sets out, as the first of its principals in C 1.6, that shop fronts should be designed to respect the streetscape; elevational proportions of the building and heritage conservation values.

16 A description is made of the rationale for that and, implicit in that, is that the shop fronts, including new shop fronts, will make a positive contribution to the streetscape within which they are located. This is reinforced by a number of guidelines, the fourth paragraph of which states, expressly, Shop fronts and windows should remain visible at night with the use of internal lighting. Security can be achieved by incorporating any roller shutters behind the window display area or alternatively using open grill shuttering or see through screen behind the line of closing.

17 The DCP expressly says that if there is to be an unbroken roller shutter of the nature proposed by the applicant, not only should it be internal, but it should be set back some distances behind the glazing, so that there is an element within the shop front that responds to the next paragraph in the DCP which reads as follows, New shop fronts should provide glazing that presents an active area to the street painted blank or screen shop windows should be avoided. Where shop fronts are provided to buildings that are not selling goods etc.

18 It is clear that, even if an unbroken roller shutter were to be installed, it could only be installed consistent with the DCP at some distance within the shop.

19 The controls provided for by the DCP, relevantly, state The use of roller shutters over shop fronts is discouraged. Shutters or other security devices should be located behind the window display.

20 Put simply, the roller shutter, when observed in the street scape, is bog ugly. It detracts. It is not merely neutral in my view, in the streetscape, it detracts from it.

21 The council, in its Statement of Issues, stated as follows, at issue 2.1, The roller door in the closed position provides a dead frontage to Glebe Point Road which is the main commercial street in Glebe and the most commercially oriented section in the Glebe commercial neighbourhood.

22 I have no doubt, even with the extended opening hours of the restaurant, that between the hours of midnight and 8am, there would be a blank white wall presented to the street and that that would be an undesirable precedent.

23 As I indicated earlier, it would be inappropriate for me to offer any comment as to what might be other forms of appropriate security. That is a matter for the applicant if she wishes to do so, to take up with the council further.

24 As a consequence of the decision, I am left with the position that the present premises, if the roller shutter is to be removed immediately, would be left in an easily accessible and vandalisable fashion.

25 Mr Gallasso, barrister for the council, has put the proposition that thirty days should be sufficient for the applicant to install the shop front that is proposed and that, as a consequence of the fact that the order was made some six months or so ago, that it ought to be a sufficient period of time.

26 Mr Strati, solicitor for the applicant, does not presently have instructions from his client but seeks a longer period of time. Having concluded that the building certificate appeal should be dismissed and that the appeal against the order should similarly be dismissed but a revised order substituted, I propose to adjourn the matter for a short period of time to enable Mr Strati to get instructions on why I should not accede to the council's submission that a thirty day period would be appropriate and I will adjourn for a short period of time to enable him to get those instructions. SHORT ADJOURNMENT 27 As, pursuant to clause 6 of the notice of determination, work is to permitted up to 1.30pm on Saturdays, I propose to amend the order to give the applicant until 1.30pm on Saturday 9 September to comply. That is six weeks and a day.

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