Griffiths v Council of the City of Sydney

The site and its context 4The site is on the northern side of Redfern Street, on the block bounded to the west by Pitt Street and to the east by Chalmers Street. There is a residential terrace row to the rear of the site, fronting Wells Street. 5The site is irregularly shaped with an area of 436sq.m and a frontage to Redfern Street of 9.3m and wraps around the rear of 104 Redfern Street, to a shared a side boundary with 102 Redfern Street. The site contains a two storey building, with two residential apartments and a cafe in the ground level tenancy. There is vehicular access from Redfern Street, through the building, to an open parking area at the rear of the site. 6There is a mix of commercial and residential uses in the surrounding locality. 7To the west of the site, at 110-112 Redfern Street, there is a three and four storey residential development with eight terrace style apartments orientated east to west, from side boundary to side boundary. Each apartment is located over four storeys, all with the same layout. The eastern facade of 110-112 on the first and second floors is setback approximately 1.2m from the eastern boundary with a wall constructed on the shared boundary between 110-112 Redfern Street and the site. The boundary wall extends to a height (RL41.38, exhibit D, west elevation, DA202 rev G) below the sill level of the kitchen windows on the second floor with a louvred screen over, so that standing in the kitchen of each apartment one can see either a filtered district view through the louvres or the roof of the existing building on the site, and the sky above the louvres. The main living area of each apartment is on the second floor, opening onto a terrace on the western side. The gap between the boundary wall and the eastern facade of 110-112 Redfern Street creates a lightwell, providing natural light and ventilation to the bedrooms adjacent to the eastern elevation on the first floor. The eastern elevation on the top, third floor of each apartment is further setback from the eastern boundary with a small terrace and planter over the kitchens below. 8To the east of the site, at 104 Redfern Street, there is a two storey Victorian terrace house and at 102 Redfern Street there is a two storey Victorian terrace house. The side and rear boundary around the courtyard of 104 Redfern Street is irregular and steps closely around the rear wing of the terrace house.

The proposal 9The proposal is a mixed use development, with basement parking accessed via a car lift from Redfern Street. The Ground Floor consists of two commercial tenancies, one fronting Redfern Street and the other at the rear of the site, with access running along the western side of the site and vertical circulation located between the Ground Floor tenancies. On the First Floor, there is a commercial tenancy fronting Redfern Street and the bedrooms of a residential apartment at the rear of the proposal. On the Second Floor, there is the living areas of the residential apartment with a rear roof terrace and swimming pool on the western side of the roof terrace. 10In section across the site (sections D-D and C-C DA 303 Rev G exhibit D), the roof of the proposal is divided into three elements of different heights. The proposal is two storeys high for a depth of 1550mm adjacent to the western boundary, so that the roof over the First Floor adjacent to the shared boundary is below the top of the masonry wall on the boundary of 110-112 Redfern Street. The proposal steps back 1550mm from the shared boundary with 110-112 Redfern Street on the Second Floor. On the western side of this three storey portion, the roof over the lift shaft and circulation area is 2260mm wide at RL43.63 (exhibit D, west elevation, DA202, rev G), with a raised roof section and western wall of the lift shaft, which is approximately 6m long, at RL44.36. The wall to the north of the raised section, forming the western edge of the roof terrace and pool, is at a height of RL43.39. The principal roof over the Second Floor is a skillion roof falling to the south, which is RL44.74 at its highest point at the northern end, which extends over the paved terrace.

Planning Framework 11At the time the proposal was lodged at the Council on 30 November 2012, South Sydney Local Environment Plan 1998 (LEP 1998) was in force. The site is zoned 2(b) Residential (Medium Density) pursuant to LEP 1998 and the proposal is permissible with consent. 12Clause 10 of LEP 1998 requires that the proposal must be consistent with the zone objectives, which relevantly include: (a) to enhance the amenity of existing medium density residential areas, and (c) 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, and (d) to provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (e) to facilitate a higher density and diverse forms of residential development on appropriate sites, and (f) to facilitate opportunities for small scale local business activity which is compatible with existing residential areas. 13The site is located within the 'Redfern Estate' Heritage Conservation Area (Redfern Estate HCA) (CA42, Schedule 2A, LEP 1998 and Heritage Conservation map LEP 1998, exhibit 22). Clause 22 of LEP 1998 requires the consent authority not to grant consent to the proposal, unless it is of the opinion that the proposal is consistent with the following relevant aims and objectives: (a) to conserve the environmental heritage of the land to which this plan applies, and (b) to integrate heritage conservation into the planning and development control processes, and (e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and (f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas, and (g) to enable the adaptation of existing non-residential buildings or works of heritage significance in a manner which is compatible and sympathetic with the fabric and character of the building or works and the use and fabric of neighbouring land and buildings, and (h) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas or streetscapes within heritage streetscape areas, and (j) to ensure the sympathetic use of sites containing buildings or facades of historic or streetscape importance which contribute to the character of the locality. 14Clause 28 of LEP 1998 at subclause (1)(c) and (d)(i), requires the consent authority to take into consideration whether the proposal is compatible with the scale and design of neighbouring development and has been designed with adequate provision of privacy for the intended occupants and those in the vicinity of the site. 15Sydney Local Environment Plan 2012 (LEP 2012) came into force on 14 December 2012. LEP 2012 includes a savings provision at cl 1.8A, which states: (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. 16Accordingly, the provisions of the then draft LEP 2012 must be taken into consideration (s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 and Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at pars 29-30). 17The site is zoned B4 Mixed Uses pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the B4 zone are as follows: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To ensure uses support the viability of centres. 18The height of buildings development standard at cl 4.3(2) of LEP 2012 is 9m for the site (LEP 2012 Height of Buildings Map sheet HOB_016). The relevant objectives of the height of buildings development standard, at cl 4.3(1) 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, 19The site is located within the 'Redfern Estate' HCA, (C56, Schedule 5, LEP 2012 and Heritage Map sheet HER_016). The terrace row fronting Wells Street, 17-31 Wells Street, to the rear of the site is a heritage item, 'Terrace group including interiors' (I1362, Schedule 5, LEP 2012 and Heritage Map sheet HER_016). The statement of significance for the Redfern Estate HCA is as follows (exhibit 12): The Redfern Estate Heritage Conservation Area is historically significant as an early Victorian structured subdivision covering the entire grant to William Redfern. The development of the estate from the 1840s - 1890s reflects the establishment of the Railway at Redfern. The importance of the suburb of Redfern in the mid/late nineteenth century is evidenced in the development of the Commercial Centre, the fine Civic buildings, the Park and the prestige housing on primary streets. The area is able to represent a great diversity of housing types dating from the period 1840 - 1890. Large scale factories and warehouses reflect the importance of manufacturing in Redfern in the early twentieth century. 20South Sydney Development Control Plan 2012 (DCP 2012) came into effect on 14 December 2012. DCP 2012 repeals both the South Sydney Development Control Plan 1997: Urban Design (DCP 1997) and City of Sydney Heritage Development Control Plan 2006, at Section 1.6. 21Subsection 3.9.6 'Heritage Conservation Areas' of DCP 2012 includes the following statement regarding new development in heritage conservation areas: New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. 22Subsection 3.9.8 'Neutral and appropriate infill buildings' of DCP 2012 relevantly includes the following: Neutral buildings are buildings that do not contribute nor detract from the significant character of the heritage conservation area. Neutral buildings are: From a significant historical period, but altered in form, unlikely to be reversed; sympathetic contemporary infill; or from a non-significant historical period but do not detract from the character of the Heritage Conservation Area. (1) Demolition of neutral buildings will only be considered where it can be demonstrated that: (a) restoration of the building is not reasonable; and (b) the replacement building will not compromise the heritage significance of the heritage conservation area. 23Subsection 3.9.9 of DCP 2012 defines a 'detracting building' as 'buildings that are intrusive to a heritage conservation area because of inappropriate scale, bulk, setbacks, setting, design or materials'. 24Subsection 4.2.1.2 of DCP 2012 provides, at (1) that buildings with a commercial or retail use are to have a minimum floor to ceiling height of 3.6m on the first basement floor to enable conversion to retail uses; 3.6m on the ground floor and 3.3m on all commercial floors above the ground floor.

Submissions regarding the planning framework 25Ms Pearman submitted that the provisions of LEP 2012 should be given determinative weight and the height of buildings development standard of 9m for the site is of particular relevance. Ms Pearman further submitted that DCP 1997 is not a relevant consideration in this matter as it was repealed by DCP 2012. 26Mr Perkins submitted that DCP 1997 is relevant to an assessment of the proposal as it formed part of the planning regime applicable to the proposal at the time the Development Application was lodged at the Council and DCP 1997 contains the detailed controls relevant to the provisions of LEP 1998. 27Both advocates supported their submission regarding the relevance of DCP 1997 with previous judgments by Commissioners in Class 1 appeals.

Public submissions 28Six resident objectors provided evidence on site at the commencement of the hearing and the Court, in the company of the parties, viewed the site from a number of the apartments at 110-112 Redfern Street and from 104 Redfern Street. Their objection to the proposal can be summarised as:

• the proposal will unreasonably compromise the outlook from the eastern windows of the kitchens on the second floor of each of the eight apartments and the light obtained via the light well to the eastern windows of the bedrooms on the first floor of each of the eight apartments of 110-112 Redfern Street;
• the increased height of the wall that forms the western side of the lift shaft and extends to the north adjacent to the pool steps of the proposal will further compromise the outlook and light to apartments 5 and 6 of 110-112 Redfern Street;
• a person standing on the southern side of the pool will be able to overlook the eastern windows of apartments 6 and 7 of 110-112 Redfern Street; and
• the bulk and scale of the proposal will compromise the amenity of the courtyard of 104 Redfern Street and the eastern windows of the proposal will compromise the privacy of windows on the western side of 104 Redfern Street.

Expert evidence 29Ms Jennifer Hill (heritage) and Mr Kerry Nash (planning) provided expert evidence on behalf of the Council. Mr Peter Romey (heritage) and Mr Paul Grech (planning) provided expert evidence on behalf of the applicant. 30Mr Simon Hanson (the architect) provided evidence regarding his philosophical design response to the context in the design of the Redfern Street facade and the rationale regarding the height of the lift shaft and the depth of the ceiling to floor structure between levels.

Heritage issues 31The Council's contention regarding heritage is essentially that the facade of the existing building on the site should be retained and some decorative details of the original facade, evident in a 1970s photograph (attached to exhibit 5) and since removed, should be reinstated in order to aid in the interpretation of the facade as a Victorian warehouse building. Council further contends that the replacement facade proposed is not an appropriate addition to the Redfern Estate HCA and would result in a 'detracting building'.

Evidence 32The heritage experts agreed on the following:

• The existing building is appropriately identified as a 'neutral building' in the Redfern Estate HCA due to the extent of change that has occurred (exhibit 5, pars 3.3 and 3.11);
• Most of the original detail of the facade is no longer extant, the parapet of the existing building facade has been clad with panelling, the large entry opening to the cafe is not original and the original timber framed windows have been replaced with contemporary aluminium frames (exhibit 5, par 3.10);
• The existing building, constructed in c1887, is a Victorian warehouse that was used as a marble works for over 70 years (oral evidence and exhibits 14 and 15);
• It is possible to reinstate the cornice and other decorative details on the facade as a remnant small section of original cornice survives (oral evidence and exhibit 5, par 10);
• It is acceptable to demolish the existing fabric of the existing building behind the Redfern Street facade (oral evidence);
• The proposal will not result in an adverse impact on the heritage significance of the listed heritage items within the broader context of the site (exhibit 5, par 3.6); and
• 100-112 Redfern Street is a neutral building and 104 Redfern Street is a contributory building to the Redfern Estate HCA (exhibit 5, par 3.2). 33The heritage experts disagreed on whether the facade of the existing building should be retained. 34According to Ms Hill, it is appropriate to keep the 'shell' of the building, including the facade, because, notwithstanding the extent of change that has occurred to the building including the removal of most of the decorative details on the facade, it is an example of a Victorian engineering workshop which is an important typology in the area and dates from a key period in the Redfern Estate HCA. In her view, it is feasible to reinstate some of the decorative details that have been removed on the facade of the existing building on the basis of what is shown in the 1970s photograph (attached to exhibit 5). 35According to Mr Romey, what is left of the existing building makes it difficult for the public to interpret the history of the building or recognise it as a Victorian warehouse, because the existing building just looks like an infill building and what is left of the existing building does not contribute much at all to the Redfern Estate HCA. In his view, façade retention is expensive and presents significant engineering and construction challenges and it is not warranted by the contribution the existing building makes to the Redfern Estate HCA. 36The Heritage Impact Statement (Urbis, November 2012, exhibit 9, p 27) states the following: The subject 'neutral' building has only a remnant of the facade extant. The retention of the facade as a neutral item is not considered necessary on this site where the opportunity exists for an infill building that responds to the setting and provides for building [sic] containing a mixture of uses relevant to the area. the [sic] concept of façadism is not supported where the building or façade does not make a significant contribution to the character of the area, as in this case. 37The heritage experts disagreed on the appropriateness of the proposed Redfern Street facade as an infill building within the Redfern Estate HCA. 38According to Ms Hill, garage openings on the street are actively discouraged in the Redfern Estate HCA (sub-s 3.9.6(3) of DCP 2012) and the garage opening in the façade is detracting. In her view, the proposed Redfern Street façade has given little consideration to the adjacent façades, it does not establish an 'informed dialogue with the context', the materials are not characteristic of the area and it does not address tonal relationships with nearby buildings. She considers that the proposal is not a sympathetic infill building. 39According to Mr Romey, it is acceptable to use contemporary materials in the Redfern Street façade for an infill building and the proposal is comfortable in its context, because it is achieves a transitional form, of an appropriate scale, without replicating a historical style. 40According to Mr Hanson, his design activates the streetfront and achieves a layered façade on Redfern Street, using perforated zinc panels, off-form concrete and metal framed windows and doors. In his view, he has responded to the proportions and scale of the proposal's context with the horizontal and vertical lines established in the façade and by layering the design to achieve a three dimensional effect evocative of the proportions of the terrace house, while being thoroughly contemporary.

Findings 41I accept the agreement of the heritage experts that the existing building is appropriately identified as being a 'neutral building' in the Redfern Estate HCA and that most of the original details of the facade are no longer extant. 42The 'test' permitting consideration of the demolition of a neutral building in the HCA (sub-s 3.9.8(1) of DCP 2012) is in two parts, the first requires that restoration of the building is not reasonable. Restoration is defined by the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter) at Article 1.7 as, 'Restoration means returning the EXISTING fabric of a place to a known earlier state by removing accretions or by reassembling existing components without the introduction of new material'. 43I prefer and adopt Mr Romey's evidence, that retaining the facade and reinstating its lost decorative details with new material is not warranted for a neutral building, because it would result in an inauthentic facade with a contemporary building behind it, which would not contribute any more to the significance of the Redfern Estate HCA than the existing building. 44Importantly, the 'test' specifically refers to the reasonableness of the restoration of the building, and not just the facade or the 'shell'. As the heritage experts agreed that the fabric behind the facade is not worthy of retention and can be demolished, it follows that it is not reasonable to restore the whole building, and retaining the facade does not amount to restoring the building. There is not sufficient existing fabric remaining on the site to make it possible to remove accretions and reassemble existing components, without introducing new material, to achieve the restoration of this building. This is substantiated by the heritage experts agreement that the existing building is appropriately identified as 'neutral', because it is from a significant historical period, but has been altered in form to the extent that it is unlikely, or in this case impossible, to be reversed. For these reasons, I am satisfied that the restoration of the existing building is not reasonable. 45The Council's proposal to require the applicant to retain and reinstate the façade and construct a new building behind it does not equate to the examples tendered in support of this argument (exhibit 16, photographs 1 and 2), which show deferential but clearly expressed contemporary additions to good quality and reasonably intact Victorian warehouse buildings in Redfern, which have retained much more original fabric than a single façade. 46The second limb of the 'test' permitting consideration of the demolition of a neutral item is that the replacement building will not compromise the heritage significance of the heritage conservation area. 47I accept Ms Hill's evidence that garages in the streetfront are actively discouraged, however, the proposal replaces an existing vehicular entry in the same position and on that basis, I consider that the vehicular entry is acceptable. 48I accept the (non-expert) evidence of Mr Hanson that in designing the façade of the proposal he has relevantly considered the context of the site and responded to the three-dimensional nature of the streetfront of terrace rows by layering the facade and evoking some of the proportions and solid to void relationships of adjoining buildings. I am satisfied that the Redfern Street elevation is a skilful and thoughtful design, that is an appropriately scaled infill addition to Redfern Street, albeit very contemporary in style and materials, and that it will result in a building that does not detract from the significance of the Redfern Estate HCA. 49I accept the heritage experts' agreement that the proposal will not result in an adverse impact on the heritage significance of the listed heritage items within the broader context of the site. I am satisfied that the replacement building, the proposal, will complement the existing character of the Redfern Estate HCA, without replicating the heritage buildings.

Planning issues 50The Council's contention regarding planning is that proposal will have an unreasonable, adverse impact on the amenity of the adjoining residential properties at 104 and 110-112 Redfern Street because it does not comply with the maximum building height development standard in LEP 2012 of 9m. Furthermore, the internal amenity of the proposal is inferior because the internal floor to ceiling heights are insufficient.

Evidence 51According to Mr Grech, LEP 1998 does not contain a maximum height development standard, but relied on DCP 1997 for detailed controls, which provides a 9m height limit measured from the natural ground level to the ceiling of the uppermost habitable floor of the proposal. Therefore the planning regime under which the proposal was lodged at Council provided for a building to be 9m high excluding the roof structure (exhibit 6, p6). 52According to Mr Nash, the existing apartments at 110-112 'borrow' their amenity, including light and outlook, from the undeveloped site. 53The planning experts agreed that the raised section of roof and western wall of the lift shaft, between RL43.63 and RL44.36, has a negative impact on the amenity of the occupants of apartments 5 and 6 of 110-112 Redfern Street. In Mr Nash's view, the lowering of this raised section to a maximum height of RL43.63 would eliminate the unacceptable impacts it has on apartments 5 and 6 of 110-112 Redfern Street, as long as the views obtained from standing on the raised pool coping and looking over the western wall are also addressed. 54According to Mr Hanson, a hydraulic lift with the lift over-run below the basement level would only lower the height of the roof of the lift shaft 150mm (to RL44.21). In order to lower the lift shaft any further, the lift would have to terminate at the First Floor. 55In Mr Nash's view, the extension of the skillion roof over the northern roof terrace should be deleted, as this extension of the roof exacerbates the visual dominance of the proposal when viewed from 104 Redfern Street. 56According to Mr Nash, the views to the north over the 1.2m high balustrade on the Second Floor terrace are acceptable, as there is sufficient distance between the roof terrace and the rear yards of the terrace row fronting Wells Street for any overlooking not to be a significant privacy issue. 57According to Mr Nash, a number of minor revisions have been described in the conditions (2)(g) and (k) of the Council's version of conditions and should be imposed on the consent as they address the privacy of the courtyard and windows on the western side of 104 Redfern Street and the visual dominance of the proposal when viewed from 104 Redfern Street. These conditions require the east facing windows on the First Floor to include screening to a height of 1.4m above the finished floor level (FFL) and setback of the Second Floor planter box on the eastern side of the terrace to align with the eastern facade and the provision of a translucent glass privacy screen 600mm above the planter box on the eastern edge. 58The applicant accepts condition (2)(g) with the addition that the screening to 1.4m includes the option of frosted [translucent] glass. The applicant opposes the relocation of the planter box and proposed the following alternative wording: The provision of an obscure toughened glass privacy screen or louvre with a minimum height of 600mm above the top of the planter box on the eastern edge of the planter to ensure no overlooking of 104 Redfern Street. The planter box is to be reduced to 400 AFFL on the third storey.

Conditions of consent 59The applicant disputes the following conditions of the Council's final version of conditions, dated 21 August 2014 (the Council's version of conditions): (A) Pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, a deferred commencement consent be granted to Development Application No. D/2012/1856 subject to the following: (1) DIVERSION OR EXTINGUISHMENT OF EXISTING EASEMENT (a) The written agreement of all beneficiaries of the existing "Easement for Sewerage Purposes 1 Wide" burdening the subject site, shall be obtained to divert or extinguish the easement or in the absence of agreement any necessary Court order obtained either under section 40 of the Land and Environment Court Act 1979 or s88K and 89 of the Conveyancing Act 1919. (b) Information to demonstrate the diversion or extinguishment of the easement shall be submitted to Council. Note: In complying with this condition, no approval is granted for any above ground modification of the approved development, besides those required in the other conditions of this consent. (B) Evidence that will sufficiently enable Council to be satisfied as to those matters identified in deferred commencement conditions, as indicated above, must be submitted to Council within 2 years of the date of the Land and Environment Court Judgement. (C) The consent will not operate until such time that the Council notifies the Applicant in writing that deferred commencement consent conditions as indicated above, have been satisfied. (D) Upon Council giving written notification to the Applicant that the deferred commencement conditions have been satisfied, the consent will become operative from the date of that written notification, subject to the following conditions of consent and any other additional conditions reasonably arising from consideration of the deferred commencement consent conditions. (2) DESIGN MODIFICATIONS The development must be modified as follows: (a) The basement plan must be modified to include a minimum of eleven (11) bicycle parking spaces for use by occupants and visitors of the building. (f) The east facing windows to the first floor master bedroom and adjoining ensuite bathroom, and bedroom 3 are to include screening to a height of not less than 1.4 metres above the respective floor levels to prevent the direct overlooking of neighbouring properties. (g) A screening device or planter bed along the northern boundary of the second floor lawn area shall be provided to prevent the overlooking of the northern neighbouring properties. Such screening must be at least 1.4 metres in height above the lawn area and prevent direct views from the lawn onto neighbouring properties. (h) Fixed and frosted glazing shall be installed on the second floor western windows of the southernmost lounge area and the west facing window to the north of the staircase to prevent direct overlook of any neighbouring property. (j) The reduction in the thickness of the floor slabs on the ground, first and second floor levels from 400mm to 300mm to reduce the overall height of the building by 300mm and ameliorate adverse impacts on adjoining residential properties. (k) Setback the second floor planter box on the eastern side of the terrace at the rear to align with the eastern facade of the building and the provision of an obscure toughened glass privacy screen with a minimum height of 600mm above the top of the planter box on the eastern edge of the planter to ensure no overlooking of 104 Redfern street. (l) Deletion of the window on the western facade on the second level between the top of stairs and the lift structure and replacement with a skylight in the general location of the window to prevent adverse amenity impacts on adjoining residential property from light spill. (m) Enclosure of the open walkway along the western side of the building to reduce potential for noise impacts on adjoining residential building. (n) Deletion of the swimming pool and access stairs to the swimming pool from the second floor terrace; (o) Reduction to the height of the wall on the western facade at the second floor level, north of the lift structure, to RL 42.99 (1800mm above the FFL of the terrace area RL 41.19) thereby preventing direct overlooking of living areas of residences at 110-112 Redfern Street. (p) The raked ceiling and roof form on the second floor level is to be deleted and replaced with a flat ceiling and roof form with a floor to ceiling height of 2600mm and the roof is to be truncated over the terrace area to an eave of 600mm; (q) The maximum height of the roof form at the second floor level is to be RL 44.17 consistent with the parapet level on the southern facade. (8) CAR PARKING SPACES AND DIMENSIONS A maximum of five (5) off-street car parking spaces may be provided. The design, layout, signage, line marking, lighting and physical controls of all off-street parking facilities must comply with the minimum requirements of Australian Standard AS/NZS 2890.1 - 2004 Parking facilities Part 1: Off-street car parking and Council's Development Control Plan. The details must be submitted to and approved by the Principal Certifying Authority prior to a Construction Certificate being issued. A maximum of five (5) off-street car parking spaces may be provided. The design, layout, signage, line marking, lighting and physical controls of all off-street parking facilities must comply with the minimum requirements of Australian Standard AS/NZS 2890.1 - 2004 Parking facilities Part 1: Off-street car parking and Council's Development Control Plan. The details must be submitted to and approved by the Principal Certifying Authority prior to a Construction Certificate being issued. (20) REMOVAL OF GRAFFITI The owner/manager of the site must be responsible for the removal of all graffiti from the building within 48 hours of its application. (22)(b) WASTE AND RECYCLING COLLECTION Garbage and recycling must not be placed on the street for collection more than half an hour before the scheduled collection time. Bins and containers are to be removed from the street within half an hour of collection. (46) LANDSCAPED (GREEN) ROOFS (a)A detailed plan of the green roof, drawn to scale, by a qualified landscape architect or landscape designer, must be submitted to and approved by Council prior to the issue of a Construction Certificate. The plan must include: (i)A Design Statement that includes details of proposed use of the green roof, general accessibility, a description of the environmental parameters it sets out to address, including noise and privacy treatment and performance specification. (ii)Survey Plans showing existing and proposed services and engineering details of existing roofs proposed to be retrofitted. (iii)Location of existing and proposed structures and hard landscaping on the rooftop, retaining walls, and roof fixings and other structural elements that may interrupt waterproofing, including cross-sectional details of all components. (iv)Details of the location, sizes and numbers of plants used with reference to NATSPEC (if applicable), with preference for drought resistant species and those specified for use by the City of Sydney. (v)Details of installation methodology including structural reinforcement or retention structures for sloping roofs, including details of prevention of slippage. (vi)Details of accessible and inaccessible areas on the Green Roof. Where proposed to be inaccessible, Green Roofs are required to remain such during occupation of the property. (vii)Details of drainage and irrigation systems, including overflow provisions. (b)Prior to the issue of a Construction Certificate, a Maintenance Manual is to be submitted and approved by the Principal Certifying Authority. A copy of the Maintenance Manual is to be kept on site at all times during construction and following completion and shall be produced to Council on request. The Maintenance Manual shall include as a minimum: (i)Frequency and methodology of different maintenance requirements. (ii)Details of safety procedures. (iii)Laminated copies of 'As Built' drawings. (iv)Manufacturer's contact details and copies of manufacturers' typical details and specification; and (v)Copies of warranties and guarantees relating to all materials and plant used in construction. The owner or if different the occupier of the premises shall at all times comply with the on going maintenance requirements of the Maintenance Manual. (c)All landscaping in the approved plan is to be completed prior to an Occupation Certificate being issued. (d)Prior to the issue of a Construction Certificate, the certifying authority must assess and approve the proposed design of the waterproofing system against the relevant performance provisions of the Building Code of Australia as required by Clause 1.0.5 of the Code and ensure the following is satisfied: (i)Evidence the green roof has been assessed as part of the structural certification for the development. (75)(a) TREE PROTECTION ZONE Before the commencement of works, a Tree Protection Zone/s (TPZ) must be established around all tree/s to be retained not less than the distance indicated in the TPZ schedule below. Tree protection must be installed and maintained in accordance with the Australian Standard 4970 Protection of Trees on Development Sites. 60Mr Perkins submitted that the applicant would prefer the proposal be revised at the direction of the Court to lower the raised section of roof and western wall of the lift shaft and to delete the pool, than to have the appeal dismissed.

Findings 61I accept that LEP 2012 is a mandatory relevant consideration (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at pars 29-30) and I must have regard to the maximum 9m height development standard at cl 4.3(2) of LEP 2012 and its objectives. 62The difference between the height control that applied under DCP 1997 (9m to the underside of the ceiling) and the maximum height development standard in LEP 2012 (9m), is the depth of the roof structure, which is 210mm (exhibit D, section D-D, DA302 Rev G). The definition of height in DCP 1997 (quoted by Mr Grech in exhibit 6, p 6) is, 'the vertical distance expressed in metres between a point on the ceiling of the topmost habitable floor and the natural ground level immediately below that point'. The topmost habitable floor of the proposal is the Second Floor. The raised section of roof over the lift shaft and western wall of the lift shaft is 9.73m above natural ground level (RL34.63 on the site survey, exhibit D, in the approximate location of the lift) and a point on the ceiling in the lift shaft is 9.52m high. The DCP 1997 definition of height does not require the ceiling where the height is determined to be within the habitable floor area, it only requires a point on the ceiling of the topmost habitable floor. The underside of the slab in the lift shaft is a point on the ceiling of the topmost habitable floor. The area to the north of the lift shaft, where the western wall is raised to RL44.36, has no roof. The height of the lift shaft therefore exceeds both the maximum height control in DCP 1997 and the maximum height development standard in LEP 2012. Mr Grech conceded that the northern end of the skillion roof, at RL44.74 exceeds the maximum height control in DCP 1997, noting that if a flat ceiling was added at 9m to the raked underside of the roof slab, the proposal would comply with the maximum height control in DCP 1997 (exhibit 6, p 7). 63Even if I accepted the applicant's submission that DCP 1997 is of relevance and I gave the DCP 1997 maximum height control determinative weight and accepted that the skillion roof would comply with the height control (had the proposal been designed with a flat ceiling); I would still have to be satisfied that the raised section of roof and western wall of the lift shaft, which is 9.73m high, and the northern end of the skillion roof, which is 10.11m high, are acceptable in terms of any amenity impacts these elements have on adjoining development and in making that assessment, I would have to give some weight to the maximum height development standard and its objectives in LEP 2012 (as guided by Blackmore Design Group Pty Ltd v North Sydney Council 118 LGERA 290 par 30). In my view, the matter turns on a merit assessment of the impact of these elements on the adjoining development and not on the minor difference between the maximum height control in DCP 1997 and the maximum height development standard in LEP 2012. Therefore, I see no need to make a finding of the relevance or otherwise of the repealed DCP 1997. 64The difference between the parties in terms of the height of the proposal is focused on two relatively discrete areas of the proposal, the raised section of roof and western wall of the lift shaft, at RL44.36 (9.73m high), and the extension of the skillion roof over the northern terrace, to a maximum height of RL44.74 (10.11m high). The Council contends that the raised section of roof and western wall of the lift shaft have an unacceptable impact on the outlook from apartments 5 and 6 at 110-112 Redfern Street and the extension of the skillion roof over the northern terrace has an unacceptable impact on 104 Redfern Street, due to the visual dominance of the proposal when viewed from the courtyard. 65I accept Mr Nash's evidence that the neighbouring development at 110-112 Redfern Street effectively borrows its amenity from the undeveloped site. While I understand the concerns of the resident objectors regarding preserving their outlook from their kitchen windows and light to their bedrooms and kitchens, the orientation of eight large apartments from side boundary to side boundary and the position of the eastern façade 1.2m from the eastern boundary means that the amenity enjoyed by the residents on the eastern side of 110-112 Redfern Street, particularly on the first and second floors, is extremely vulnerable to the development of the adjoining property. Therefore, any amenity impacts on the apartments at 110-112 Redfern Street must be balanced against the reasonable development of the site. It would impose an unreasonable constraint on the development potential of the site, in my view, to expect the proposal to maintain the existing outlook, through the louvres, from the kitchens on the second floor at 110-112 Redfern Street. 66I accept the planning experts agreement that the raised section of roof and western wall of the lift shaft has a negative impact on the amenity of the occupants of apartments 5 and 6 of 110-112 Redfern Street. I accept and adopt Mr Nash's evidence that to lower the raised section of roof and western wall of the lift shaft to a maximum height of RL43.63, which is 9m above natural ground level, would eliminate the unreasonable amenity impacts on apartments 5 and 6 at 110-112 Redfern Street, because this would maintain a component of sky in the view above the louvres from a standing position in the kitchens of apartments 5 and 6. I understand from Mr Hanson's evidence that relocating the lift overrun to the basement level would reduce the height of the lift shaft by only 150mm and that lowering the roof over the lift shaft to RL43.63 would require the lift to terminate at the First Floor. Lowering the lift shaft by 150mm would not sufficiently ameliorate the impact of the proposal on the outlook from the kitchens of apartments 5 and 6 of 110-112 Redfern Street. Therefore condition (2)(i) in the Council's version of the conditions is to be deleted and the architectural drawings are to be revised to lower the roof and western wall of the lift shaft to a maximum height of RL43.63. 67If the raised section of roof and western wall of the lift shaft is lowered to RL43.63, the top of the wall on the western side of the pool will be 1.24m above the pool (the pool is at RL42.39 and not the level shown on the architectural drawings, as submitted by Mr Perkins). It would be possible for someone standing on the southern end of the coping around the pool to look into the eastern windows of apartments 6, 7 and possibly 8 of 110-112 Redfern Street. A translucent screen over the western wall of the pool would raise the height of the wall and obstruct the component of sky in the view above the louvres from apartments 6 and 7, which is not, in my view, a satisfactory solution. For this reason, the swimming pool and stairs to the pool are to be deleted. The wall on the western side of the Second Floor terrace, north of the lift shaft, is to be a maximum height of RL42.99, 1.8m above FFL of the roof terrace, as described in condition (2)(o) of the Council's version of conditions. 68I accept Mr Nash's evidence that the northern extension of the skillion roof over the northern terrace should be deleted, as this portion of the roof exacerbates the visual dominance of the proposal when viewed from 104 Redfern Street. The three storeys of the proposal extend further to the north than the rear wing of the two storey terrace house at 104 Redfern Street and the deletion of the extension of the skillion roof beyond the northern facade will ensure a more appropriate height transition between the proposal and the adjoining terrace house at 104 Redfern Street. In my opinion, it is reasonable to permit a maximum eave depth of 800mm beyond the northern facade and a horizontal roof or shade structure over the terrace for a maximum depth of 2.965m to match the depth of the paved terrace area, with a maximum height to the underside of the horizontal roof or shading structure above the paved terrace of 2.4m. A vertical shading device, such as louvres, can be added externally to shade the windows above the horizontal flat roof or shading structure, if desired. 69The Council's version of conditions (2)(p) and (q) are to be deleted, as Mr Nash's evidence was that it was the overhang of the skillion roof beyond the northern elevation that caused the impact on 104 Redfern Street and the deletion of the extension of the skillion roof would adequately ameliorate the visual dominance of the proposal on 104 Redfern Street, without resorting to redesigning the roof to be flat. 70I accept Mr Nash's evidence that the amenity impacts of the proposal on 104 Redfern Street would be ameliorated by the revisions described by condition (2)(f) of the Council's version of conditions, requiring the east facing windows on the First Floor to include screening to a height of 1.4m above the FFL. I also accept the applicant's modification of this condition to include the option of translucent glass to 1.4m above FFL, as translucent glass would also achieve the desired outcome of preventing overlooking. 71I accept Mr Nash's evidence that the visual dominance of the proposal and the amenity impact of the proposal on 104 Redfern Street would be ameliorated by the revision described in condition (2)(k) of the Council's version of conditions, requiring the Second Floor planter box on the eastern side of the roof terrace to be setback to the west, to align with the eastern facade and the provision of an obscure toughened glass privacy screen over. A roof is to be added over the 960mm portion of the First Floor eastern façade that steps further to the east than the rest of the eastern façade and the roof is to be no higher than the FFL of the Second Floor. In my view, the eastern wall along the roof terrace should be a minimum of 1.4m high, to the east of the planter and need not be translucent glass, instead it can be designed in any material, at the discretion of the architect, as long as it obstructs views from the roof terrace towards 104 Redfern Street. 72I accept Mr Nash's evidence that the 1.2m high balustrade on the northern side of the terrace is acceptable and consequently, condition (2)(g) of the Council's version of conditions, requiring a screening device on the northern boundary, is to be deleted. 73Due to the proximity of the western elevation of the proposal on the Second Floor and the eastern elevation of 110-112 Redfern Street, it is reasonable, in my view, to impose Council's version of condition (2)(h) requiring the western windows of the southernmost lounge area to be fixed and translucent and (l), requiring the deletion of the window adjacent to the lift shaft (and replaced by a skylight if desired), in order to avoid overlooking and light spill. 74I am satisfied that the proposed floor to ceiling heights do not unreasonably compromise the internal amenity of the proposal as the commercial tenancies are orientated to either the front, southern elevation or the rear, northern elevation and all have access to natural light. 75I accept the evidence of the Mr Hanson that the thickness of the edge beams of the floor slabs are 400mm and the proposal includes locating services on the underside of the slab, within the 400mm depth between the underside of the ceiling and the floor level over. Consequently, condition (2)(j) of the Council's version of conditions is to be deleted. 76The Council's version of condition (2)(m) requiring the open walkway to be enclosed to reduce the potential for noise impacts is to be deleted, as the walkway, on the Ground Floor, is two levels below the top of the masonry wall on the boundary of 110-112 Redfern Street, which provides sufficient separation from the adjoining development and the design of the entry with the entry gate setback from the street boundary with an open area over the gate, further modulates the streetfront elevation. 77The proposal includes 6 bicycle parking spaces in the basement and 5 at the rear of the proposal on the Ground Floor. The Council's version of condition (2)(a) requires the proposal to provide a minimum of 11 bicycle parking spaces in the basement. I am satisfied that the total of 11 bicycle parking spaces proposed by the applicant and shown on the architectural drawings satisfies Council's requirement for 11 bicycles and consequently, condition (2)(a) of the Council's version of conditions can be deleted. 78The applicant disputes the Council's version of condition (8), as the Council requires a maximum of 5 parking spaces and the applicant seeks 6 parking spaces. The basement plan shows 6 car parking spaces (exhibit D, DA100 Rev G). I am satisfied that the 6 parking spaces are acceptable and condition (8) is to be revised from 5 to 6 car parking spaces. 79The applicant disputes the Council's version of condition (20), as the Council requires graffiti to be removed within 48 hours of its application and the applicant seeks 72 hours. I am satisfied that 72 hours for the removal of graffiti is reasonable and achieves Council's requirement that graffiti be removed soon after its application. Condition (20) is to be revised from 48 hours to 72 hours. 80The applicant disputes the Council's version of condition (22)(b), requiring garbage and recycling to placed on the street within half an hour of collection and removed within half an hour following collection. The applicant seeks 12 hours either side of collection for placement and removal of bins. The collection day for the site is Monday and no time is specified for collection (http://www.cityofsydney.nsw.gov.au/live/waste-and-recycling/collection-days-and-bins/find-your-collection-day). The City of Sydney website states the following in relation to placement of bins prior to collection (http://www.cityofsydney.nsw.gov.au/live/waste-and-recycling/collection-days-and-bins): 'If you live in a house, put your bins out the night before collection day, near the kerb and in a spot where they won't block pedestrian, bicycle or vehicular access' 'All your bins must be stored ON your property between collections, not on the footpath or street' 'If you are a business, you will need to arrange a private waste and recycling collection. Our services are only for residents living in the City of Sydney council area.' 81As there is only one dwelling in the proposal, it follows that it is equivalent to 'a house' in terms of Council's garbage policy. The Council's version of condition (22)(b) is therefore contrary to Council's policy for domestic garbage, to 'put your bins out the night before collection day' and there is no need to impose a condition requiring the bins to be brought in within half an hour as this is also addressed by Council's policy that bins must be stored on the property between collections. In order to permit the resident to place the bins on the street the night before collection, the 'half an hour' in condition (22)(b) is to be replaced by 12 hours for both placement and removal of bins and 'Domestic garbage and recycling' can replace 'Garbage and recycling'. A further condition (c) may be added by Council to address the requirement for any business occupying the proposal to arrange for private waste and recycling collection, in accordance with Council's policy. 82The applicant disputes the Council's version of condition (46), requiring a detailed plan of the green roof to be submitted to and approved by Council prior to the issue of a construction certificate. The requirements in condition (46) are not fully addressed by the following condition, (47) Landscaping of the Site and the landscaping of the roof terrace is an integral part of the proposal, with the potential to cause amenity impacts on adjoining development. Therefore condition (46) is to be retained in the conditions of consent. 83The applicant disputes the Council's version of condition (75)(a) specifying the Tree Protection Zone (TPZ) for trees 2, 3 and 4 and seeks to modify the condition by adding that the TPZ for trees 2, 3 and 4 are to be modified to accord with the Arboricultural Impact Assessment prepared by Bluegum Tree Care and submitted as part of the development application. The reference to the Arboricultural Impact Assessment modifications of the TPZ for trees 2, 3 and 4 in the condition is acceptable, as the report has considered the issue in detail and it has been prepared by a suitably qualified consultant.

Easement 84The site is burdened by a private easement for sewer benefiting 104 and 102 Redfern Street. The proposal extends across the easement, at the rear of 104 Redfern Street to the shared side boundary with 102 Redfern Street at both basement and ground level. The applicant has not provided a written agreement of all beneficiaries of the existing easement to divert or extinguish the easement. The Council has included a deferred condition of consent (exhibit 21) requiring information to demonstrate the diversion or extinguishment of the easement to be submitted to Council for the consent to become operative. Notwithstanding the inclusion of the deferred commencement condition, the Council contends that consent should not be granted until the applicant can demonstrate the diversion or extinguishment of the easement. The applicant is satisfied with the inclusion of a deferred condition of consent. 85In Mison v Randwick Council (1991) 191 NSWLR 734, the Court of Appeal held that if a condition imposed on a development consent has the effect of leaving an important aspect of the development for a later decision, which may alter the proposed development in a fundamental respect, then the consent is not a consent to the application. There is no certainty that the proposed deferred commencement condition regarding the diversion or extinguishment of the easement over the site benefiting 102 and 104 Redfern Street is capable of being satisfied, as the applicant has not demonstrated that there is a solution to meeting the needs of the easement beneficiaries. Consequently, there is no certainty that the development will not be altered in some fundamental respect by the outcome of negotiations between the applicant and the easement beneficiaries or an application to the Court (pursuant to s 88K Conveyancing Act 1919 or s 40 Land and Environment Court Act 1979). For this reason, the Court is unable to grant development consent to the proposal.

Conclusion 86The demolition of the existing 'neutral building', including the Redfern Street façade, is acceptable, because the test in DCP 2012 specifically refers to the reasonableness of the restoration of the building, and not just the facade or the 'shell' and as the heritage experts agreed that the fabric behind the facade can be demolished, it follows that it is not reasonable to restore the building. Furthermore, retaining the facade and reinstating its lost decorative details is not warranted, because it would result in an inauthentic facade with a contemporary building behind it, which in my view would not contribute any more to the significance of the Redfern Estate HCA than the existing building. 87I am satisfied that the Redfern Street elevation is a skilful and thoughtful design, that is an appropriately scaled and proportioned infill addition to Redfern Street, albeit very contemporary in style and materials, and that it will result in a building that does not detract from the significance of the Redfern Estate HCA. 88I accept the planning experts agreement that the raised section of the lift shaft and western wall at RL44.36 has a negative impact on the amenity of the occupants of units 5 and 6 of 110-112 Redfern Street and I accept and adopt Mr Nash's evidence that to lower this section to a maximum height of RL43.63, which is 9m above natural ground level, will eliminate the unreasonable amenity impacts on the adjoining development, as it will maintain a component of sky in the view above the louvres from a standing position in the kitchens of apartments 5 and 6. 89I am satisfied that the proposal, following the revisions listed in the directions below, will be consistent with the zone objectives in cl 10 and the heritage aims and objectives in cl 22 of LEP 1998 and the objectives of the B4 zone in LEP 2012 and that the envelope of the proposal will satisfy the objectives of the height of buildings development standard in LEP 2012.

Directions 90For the reasons set out in the judgment, I am satisfied that the appeal can be upheld, however, the parties are to file a settled, revised set of architectural plans and conditions of consent which reflect the findings of this judgment, as follows:

• The architectural drawings are to incorporate and note the revisions described in the undisputed conditions of Council's version of conditions (2) (b), (c), (d) and (e) and these conditions can then be deleted from the conditions of consent.
• The architectural drawings are to incorporate and note the revisions described in the Council's version of conditions (2) (f - refer to par 70), (h), (k - refer to par 71), (l), (n) and (o) with dimensions and RLs shown as necessary to fully describe the proposal and these conditions can then be deleted from the conditions of consent.
• The Council's version of conditions (2) (a), (g), (i), (j), (m), (p) and (q) are to be deleted from the conditions of consent.
• The Council's version of conditions (8), (20), (22)(b) and (75)(a) are to be modified, as described in pars 78 - 83.
• The architectural drawings are to be revised to delete the raised roof and western wall of the lift shaft, and the lift shaft is to be a maximum height of RL43.63.
• The extension of the skillion roof over the northern terrace is to be deleted, as described in par 68, with a maximum eave of 800mm.
• The area of roof to the east of the main bedroom on the First Floor is to be noted on the architectural drawings as 'non-trafficable'.
• A further revision number/letter is to be added to the architectural drawings and an updated list of drawings is to be noted in the conditions of consent. 91The parties are to file the settled, revised set of architectural plans and conditions of consent by Friday 19 September 2014, with liberty to restore on two days notice. 92While the revised set of architectural plans and conditions of consent will satisfy all the merit issues, there is no certainty that the proposed deferred commencement condition regarding the diversion or extinguishment of the easement over the site benefiting 102 and 104 Redfern Street is capable of being satisfied. Therefore I am adjourning the hearing for a period of 6 months for the applicant to provide evidence to the Court of the diversion or extinguishment of the existing easement, with liberty to restore during that period on one week's notice if the matter is resolved earlier. Susan O'Neill Commissioner of the Court

Amendments 03 September 2014 - 'as there is authority that is a mandatory relevant consideration' replaced with (as guided by Blackmore Design Group Pty Ltd v North Sydney Council 118 LGERA 290 par 30) Amended paragraphs: 63 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: 03 September 2014