The applicant, Irfan Noor has appealed the Council's refusal of his development application D/2016/932 (DA). The DA seeks consent for the partial demolition of the existing dwelling, and the erection of a two storey terrace with an excavated basement level for parking and a laundry, two roof terraces and rear extension at 185 Palmer Street, Darlinghurst (the site).
The background facts and statutory controls are set out in the Council's Amended Statement of Facts and Contentions filed on 24 August 2017. I do not propose to repeat all of that detail, save to note the following matters in order to give some context to the evidence.
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Background Facts
The primary frontage of the site is to Palmer Street and the secondary street frontage is to Woods Lane. It presently contains a part two storey, part single-storey bald faced terrace house, with a two storey frontage to Palmer Street. The style is similar to the terraces from 173 - 193 Palmer Street. The rear of the property is a single-storey garage with the roller door.
Surrounding development is predominately residential. The adjoining sites to the north and south of 185 Palmer Street have been subdivided creating two adjoining properties with primary frontages to Wood Lane and Palmer Street. As the site slopes from Palmer Street (East) to Woods Lane (West ) the adjoining southern properties (187 Palmer Street and 18 Woods Lane) are particularly vulnerable to any the development of the site which generates unreasonable overshadowing and/or loss of solar access.
Woods Lane, to the rear of the site, is narrow measuring approximate 4.5 m in width. The laneway is characterised by a mixture of residential properties which are primarily two-storey terraces and occasional garages and one three-storey property. The terraces across the laneway at nos 9-25 Woods Lane are local heritage items.
The site is zoned R1 General Residential under the LEP and the proposed development is permissible with consent. The LEP prescribes a maximum 9m building height for the site and the amended application is well under the maximum height control. The maximum FSR for the site is 1.5:1. Again, the amended application is compliant. While the site is not a listed heritage item it is nominated as a contributory item within the East Sydney Conservation Area (C 13). Therefore, the heritage provisions of the Sydney Local Environmental Plan 2012 (LEP) and the Sydney Development Control Plan 2012 (DCP) are relevant.
The contentions raised by the Council in respect of the original application were resolved in part by the production of amended plans during the s34 conciliation conference held under the Land and Environmental Court Act 1979 (the Court Act) before the hearing. These plans which were substituted in the appeal by the Registrar and the subject of the joint reports produced by the parties' expert witnesses (Revision F) (Exhibit A).
At the commencement of the hearing Ms Berglund, was careful to identify the matters which remained at issue. However, the landscape changed after the case opened when I allowed the applicant a further opportunity to amend its application in order to better address the objectors' concerns as expressed at the site view. In allowing this further amendment I understood that the parties' experts were able to deal with these latent changes during their oral evidence and importantly, that the Council agreed to this course (the Revision G plans).
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The amended plans - Revision G
The Revision G plans are marked (Exhibit E). They introduce the following amendments:
a lowering of the built form in the middle portion of the development to a height of between 6 and 7.189 m, with the breezeway (linking the front dwelling to the rear building and roof terrace) lowered below the gutter line of the existing terrace at Palmer Street;
a 2 storeys rather than part 3 storeys presentation when viewed from the properties to the south ;
a reduction in the width of the breezeway (linking the front dwelling to the rear building and roof terrace) to less than half the width of the site; and the deletion of the roof hatch /terrace above the breezeway link;
the introduction of a setback at first floor level along the southern boundary by 1m and at ground by 3.97m opposite the kitchen courtyard at 187 Palmer Street;
the installation of planter boxes along the southern boundary of the rear terrace to impede overlooking particularly into 18 Woods Lane;
a reduction in the area of the roof terrace from 25m2 to 15m2; and setback of the roof terrace northern balustrade by 1 m from that boundary;
the façade parapet lowered to match gutter line of 18 Woods Lane ( applicant to defer to Council in respect of any relocation of the windows on this façade);
shadow elevations produced to demonstrate that solar access at mid-winter 21 June and Spring Equinox 21 September has been improved by the amendments - for a person standing on the courtyard at 187 Palmer Street and in the terrace at 18 Woods Lane;
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Heritage contentions
It seems that the Revision G plans satisfactorily address the heritage concerns raised in the joint report by the Council's expert Mr Henry Wan (Exhibit 3). Whilst giving his oral evidence in Court Mr Wan said that he now agrees with Mr Graham Brooks (the applicant's heritage expert) that the view line from Woods Lane to the tin roof element of the terrace on Palmer Street is appropriately preserved by the lowering of the breezeway link building beneath the gutter line of the Palmer Street terrace. Mr Wan also said at that time that he is content with the agreed changes to the Palmer Street façade. After that evidence, Ms Berglund confirmed on instructions that, subject to the imposition of the Council's draft conditions, the Council did not agitate for a refusal of the amended application on heritage grounds.
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Planning contentions
That said, the Council's opposition to the development on planning grounds was not resolved by the Revision G amended application. The amended design remains, according to the Council, an overdevelopment of the site with unacceptable visual amenity impacts for the neighbours to the south, particularly.
While the Council's planner Michaela Briggs and its urban design expert Julia Pressick accept that the reduction in the height, width and bulk of the middle portion of the development is an improvement they do not support an approval of this form of development on the site. They hold to the view that the middle element is both dominate and overbearing when viewed from its northern and vulnerable southern neighbours. In their expert assessment the 2.3m wide, two storeys (plus roof terrace) breezeway link building does not respect the physical constraints of the site which are dictated by its east west orientation 5m width and 167m2 land area.
In that regard, Ms Briggs believes that the amended design has not taken appropriate account of the existing built forms adjoining the site. In the joint report she observes that due to the subdivision of the adjoining lot into two lots, the height is predominantly one and two storey with primary open spaces towards the centre of the site and a greater height and bulk of two storeys with attic additions towards Palmer and Woods Lane as primary frontages. In her assessment the central proportions of the proposed building, even at the reduced width and setback from the southern and northern boundaries as proposed in the last changes, does not reinforce the character and scale and form of surrounding buildings which are in the conservation Area. Moreover, she believes that the introduction of a roof terrace above the 2 storeys component on this site is not supported by the DCP controls in Section 4.1.8.1 in this particular case. In Ms Briggs' assessment the proposed roof terraces do not contribute to building design quality or respect the visual and acoustic privacy of neighbours in accord with the objective in Section 4.1.8.1 (1) (b) of the DCP. Nor does she believe that the terraces are located and designed to minimise overlooking of surrounding buildings in accord with the terms of Section 4.1.8.1 (1) (a) of the DCP. In her view the planter proposed on the rear terrace does not adequately address the mutual visual privacy impacts with the terrace at 18 Woods Lane - which she believes will still be able to be overlooked from the site.
Collectively, the Council's experts said that in their considered assessment the proposed roof terraces are out of character and set an undesirable precedent in this conservation area. Ms Briggs and Ms Pressick agreed that the terraces at 18 Woods Lane and 174 Crown Street - relied upon by the applicant to support this proposal - were pre-existing before any redevelopment of those sites and otherwise acceptable after merit assessment under s79 C of the Environmental Planning and Assessment Act 1979 ( the EPA Act).
In their evidence to the Court Ms Briggs and Ms Pressick each highlighted the fact that the LEP seeks to deliver the highest standard of architectural, urban and landscape design for this site. They emphasised cl 6.21 (3) which mandates that the consent authority must not grant development consent to development to which this clause applies unless it is of the opinion that the proposed development exhibits design excellence. In considering whether a design exhibits design excellence they referred me to cl 6.21(4) (d) which requires, amongst other things, a consideration of "(v) the bulk, massing and modulation of the buildings" and "(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity". Ms Briggs expressed the opinion that in her assessment the development falls short of the standard required by cl6.21 (4) (d) and is in her view "poor design". It offers unacceptable visual privacy impacts and solar access impacts for the properties on the southern boundary generated by an inappropriate massing of the built form in the middle of the site. Ms Pressick agrees, and in her oral evidence to the Court she stated that achieving a high standard of architectural design which is appropriate to a terrace in this particular location is closely related with the position of the building massing. The terrace row along Palmer Street has a moderate degree of variation (with regards to site coverage, roof types, subdivision etc.) however, the rear wings are generally single storey with a two storey laneway building at the rear of the site. The exception to this is 187 Palmer Street which has an original two storey rear wing.
According to Ms Pressick's the pattern of development in the immediate area of the site can be characterised as generally consistent with the pavilion-style addition, as referenced in Section 4.1.4 of the DCP. The proposed design does not follow that existing pattern of development within the terrace row. Instead, the design locates the bulk of the building within the centre of the site, albeit now at a 2 storeys rather than the original 3 storeys design, plus roof terrace. For that reason, Ms Pressick retains the view that the Revision G amendments to the plans do not overcome the unacceptable environmental impacts generated by the middle portion of the development such as excessive overshadowing and an overbearing impact.
It would appear that the Council's experts' greatest concern with the proposal is its adverse overshadowing impacts on the private open space areas and side windows of the properties to the south generated by the 2 storey middle plus roof terrace element of the development. Put simply, the aims and objectives of clauses 4.1.1, 4.1.3 and 4.4.4 and 4.1.8 of the Sydney Development Control Plan 2012 (DCP) are not met by this development. With that in mind the Council maintains that the extent of the impacts upon neighbouring properties could be significantly reduced through a more suitable building typology consistent with that envisaged by Section 4.1.4 of the DCP. A pavilion addition, for example would minimise bulk at the centre of the site thus reducing overshadowing and massing impacts to neighbouring properties. It would also reduce overlooking to surrounding developments and improve the amenity of occupants by providing reasonable private open space.
Based on the planning principle in Davis v Penrith Council [2013] NSWLEC 1141 and the evidence of Ms Briggs and Ms Pressick the Council submits that the application should be refused because of its adverse impacts on sunlight, privacy and outlook of neighbouring properties. In summary it contends that the extent of the impacts produced by the Revision G proposal provides for a built form and design that is inappropriate for the site, its constraint and surrounds. In contrast the recent approval at 177 Palmer Street offers an example of a successful pavilion addition on a site with the same controls. Such a design is anticipated by Section 4.1.4 of the DCP. Although, the Council's experts conceded that this is just one style of appropriate development for this site there are obviously other designs.
The development's failure to achieve the required level of solar access to the adjoining properties (Section 4.1.3.1 of the DCP) is conceded by the applicant. However the applicant, relying on the evidence of Mr Mead contends that the planning controls relating to height and FSR support and anticipate a two storey built form across the majority of the allotment. While the property to the north reduces to a single storey at the centre of the allotment the planning controls do not require such a design and the 9 metre LEP height and DCP storey control support the current design. According to Mr Mead a pavilion style development with a one storey link would not be design excellence. It would require the occupants to travel up and down stairs in order to negotiate the different wings of the site. Given that the central part of the site is not visible from the public domain and the narrowing of the building width to accommodate circulation only Mr Mead said that the amendments provide a significant reduction in the building bulk at the centre coinciding with the most sensitive part of the side boundaries.
Mr Mead does not accept that there is any particular pattern of development in this area. He is of the opinion the style of development is eclectic and evolving. Given the orientation of the site east/west Mr Mead said that overshadowing to the southern properties is inevitable and the amended design goes to great lengths to try an ameliorate solar access as far as is reasonable the impacts for the southern neighbours. The building is less than half the width of the site in the middle portion and set back at the first floor level 1 metre and the roof balcony has been reduced in area to 15m2 from 25m2. Planter boxes have been installed along the southern boundary of the rear terrace and will preclude overlooking to the rear deck of 18 Woods Lane. At the end of the day, Mr Mead said the development as proposed offers excellent design on a small compromised site.
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Conclusion
In summary, the Council believes that the proposal should be amended to provide a built form that is more sympathetic to the established character of the area. In that regard it submits that Section 4.1.4 of the DCP which deals with Additions and Alterations is relevant. As the Council's advocate Ms Berglund highlighted when she opened its case "The potential for additions is dependent upon the size of the site, the context of the building, heritage significance of the building and the impact upon neighbouring properties and the wider area". The subject site is narrow with an east west orientation. It is necessarily constrained to a large extent in my view by the existing built forms to the south - which have already centralised the private open space in the middle of the site and along that properties northern boundary by way of a small courtyard.
The current design, as Mr Mead concedes, has adverse solar impacts on the only private open space of the properties to the south. Irrespective of the latest amendments and a marginal improvement in solar access to people standing in the private open spaces on these adjoining properties the experts agree that the design does not comply with the solar access controls in the DCP at Section 4.1.3.1. The Council submits on the evidence of its expert evidence that the amenity impacts - in terms of overshadowing and loss of solar access - generated by the mass and extent of the middle portion of the proposed building are unreasonable despite the east west orientation of the site. The DCP controls seek to achieve a design which sites buildings to provide a particular level of solar access to existing open space within the site and adjoining dwellings. Mr Mead concedes that a lower, single storey middle component of the development will improve solar access to these southern properties but says the controls allow for more development over the site. Ms Briggs and Ms Pressick are of the opinion that a development which is one storey in the middle of the site or in the nature of a pavilion addition such as that referred to in Section 4.1.4.4 of the DCP (illustrated in figure 4.9) would not generate as adverse solar and visual privacy impacts for its neighbours.
While I accept that the controls do not mandate the pavilion style of development as Ms Briggs stated such design offers flexibility on a constrained site such as the one under review. Relevantly, this style of development has been approved by the Council on the site to the north of the subject property. Based on the evidence I accept that such a design would better mitigate the adverse solar access, privacy, visual impacts for the properties to the south and north. Obviously there are other designs which would have the same effect. The issue in my assessment is the 2 storeys height and massing of the development along the site with roof terrace on top. It will be overbearing when viewed from the property next door in my assessment and unreasonably remove the limited solar access they currently enjoy from their private open space at significant times of the year.
Clause 6.21 of the LEP invites delivery of the highest standard of architectural, urban and landscape design for external alterations to an existing building on land to which the plan applies. Moreover, subclause (3) provides that I must not grant consent to development unless I am of the opinion that the proposed development exhibits design excellence. Subclause (4) states that when considering whether development to which the clause applies exhibits design excellence, I must have regard to certain matters. Subclause (4) (d) (v) requires me to consider "the bulk, massing and modulation of the buildings", and (vii) requires that I consider the environmental impacts, such as "sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity".
Ms Briggs describes the design Revision G as being "poor design" and after an assessment of all of the evidence including that given by Mr Mead and the objectors I must agree. I accept the Council's evidence that the height in storey control works with the maximum height in metres control and FSR to ensure that development relates to the character of the neighbourhood and streetscape. However, these maximums may only be achieved on this small constrained site where it can be demonstrated that the proposed development can comply with the provisions set out in Section 4.1.1 (1)(a) -(c) of the DCP having regard to other controls within Section 4 including those relating to residential amenity ( Section 4.1.3) and Alterations and Additions ( Sections 4.1.4).
In my opinion the adverse impacts generated by the development for the neighbours at 187 Palmer Street and 18 Woods Lane in terms of solar access and visual privacy support a finding that the proposal is an overdevelopment of the site. With that in mind I agree with the Council's experts and find that the adverse impacts suggest that the development does not exhibit design excellence. In that circumstance I am precluded by cl6.21 (3) of the LEP from granting development consent in this case.
The Court orders:
1. Appeal dismissed.
2. The exhibits are returned to the parties.
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Susan Dixon
Commissioner of the Land and Environment Court of NSW
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Decision last updated: 10 November 2017