Leduva Pty Ltd v Council of the City of Sydney

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

DATES OF HEARING: 11 April; 24 and 25 July; 29 August and 9 September 2008

APPLICANT Mr J Johnson, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Sachs Gerace Lawyers

RESPONDENT Ms L Byrne, solicitor City Prosecutor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10757 of 2007; 10076 of 2008 Leduva Pty Ltd v Council of the City of Sydney

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the modification of an existing development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: 6 to 8 Woodburn Street, Redfern is a site in close proximity to the main Sydney railway corridor between Central and Redfern Stations. It is on the western side of Woodburn Street and only marginally separated from the rail transport corridor.

2 The existing building on the site includes, amongst part of its fabric on the eastern side, a saw-toothed roof section which has been adaptively re-used and refurbished to provide residential accommodation. The uppermost units, Units 3A through to 3E on the eastern frontage, are functionally located across three levels. On the uppermost level, in the saw teeth of the roof, have been constructed a room at the western end; a small toilet area and landing in the centre; and a modestly larger room at the eastern end. Those rooms, together with what were originally pull-down staircases to provide access to them, in each of the five units, were being used as bedrooms.

3 In these proceedings, two matters are being dealt with. The first is an appeal against an order made by the Council of the City of Sydney that would, effectively, require the removal of that bedroom use and the removal of the sanitary facilities. The second of the proceedings is an appeal against the refusal of an application to the council by the applicant to modify its development consent to legitimise, subject to a number of modifications which have further emerged during the course of the proceedings, the use of those rooms as bedrooms.

4 That latter application is made pursuant to s 96 of the Environmental Planning and Assessment Act 1979. It is long settled that s 96 is to be regarded as a beneficial and facultative provisionion rather than a prescriptive and restricting one. It is in that context that I consider whether or not both or either the rooms at this level should be permitted to be used as habitable spaces and have permanent stairways provided to them in each of the units.

5 It is convenient, in this regard, to note that the shape of the rooms is one that has a limited height, being approximately 2.1 m in height (and that is only across a portion of the ceiling height which then slopes to the south in each of the rooms to a height of some 1.1 m above the floor).

6 Although there was some minor disagreement between the planning and building witnesses for the council and the planning witness for the applicant as to the floor areas and volumes of each of those rooms, to the extent that either is relevant, I am proceeding to undertake the assessment based on the figures provided by the applicant (and, if the applicant were to be successful with respect to either or both of the rooms, I will then consider whether or not taking the council's figures makes any difference).

7 In addition to the questions of the dimensions of each of the rooms proposed to be used as a bedroom there is a minor question of non-compliance with the Building Code of Australia of a ceiling beam projection in the corridor area at the head of the stairs. I note in this regard that, although there is such a minor non-compliance, Mr Conroy, giving evidence on behalf of the council concerning building standards, accepts that that encroachment itself would not cause a significant safety or amenity concern. I therefore set aside that question and turn to the possible uses of the rooms.

8 The council's position is that non-compliance with the Building Code of Australia coupled with the shape of the rooms, in section, is such that their amenity is insufficient to permit their use as habitable spaces. During the course of the earlier part of the proceedings, issues arose concerning the thermal and acoustic acceptability of each of these rooms and a variety of other issues concerning insulation and the like.

9 As a consequence, two single parties' experts were appointed; Mr Koikas to deal with acoustic issues and Mr Erbas to deal with thermal comfort issues. I have had the benefit of written reports from both of them and hearing oral evidence concurrently from them on a cross-disciplinary basis today.

10 The effective position is that, subject to a range of conditions that were discussed by them, including the removal of the proposed roof ventilators; the removal of the existing roof ventilator to Unit 3C (and the making good of the roof to that unit after that removal); and the non-incorporation of any direct ventilator systems into the eastern rooms coupled with the provision of a mechanical ventilation system to provide an adequate airflow, both rooms are capable, to an appropriate degree consistent with contemporary design standards, for use as an habitable room under the ordinary range of conditions of temperature that should be expected in Sydney.

11 However, the combination of their two sets of evidence shows a distinction of some importance between the two rooms. That distinction is that under no circumstances could the windows of bedroom 4 in any of the units, that being the bedroom closest to the railway lines, be opened and still provide an appropriate level of acoustic amenity to the residents of such a room. However, the western of the rooms, bedroom 3, would be capable of having its windows opened and still provide both acceptable acoustic and thermal amenity.

12 As I have earlier indicated, each of the rooms is constrained as to its ceiling height in cross-sectional shape. The room to the west has an area of some 10.8 sq m on the applicant's figures and the room to the east some 12.5 sq m. They are not generous spaces. However, I am satisfied that the combination of the thermal sufficiency; mechanical ventilation provision and opportunity to open the windows of all bedrooms 3, just, and only just (on either area or volume calculation for these rooms), takes them past the threshold of acceptability.

13 On the other hand, I am satisfied that the inability to have appropriate acoustic comfort whilst any window were open in bedroom 4 coupled with the combination of cross-section; floor area; and necessity for mechanical ventilation at all times (in order to ensure appropriate acoustic comfort) renders the use of all bedrooms 4 as habitable rooms unacceptable on the question of amenity.

14 The council, however, has raised a number of other issues; primarily that there would be an intensification of the development and non-compliance with the provisions of the relevant Development Control Plan. There is already, it is conceded, an inconsistency by exceedence with the floor space ratio of the present development. However, the relevant part of the DCP describes the objectives of floor space ratios as being to control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area. A variety of performance criteria are then set out including overshadowing and privacy, streetscape, parking and landscape requirements, visual impact and views, capacity of the community infrastructure and the road network to support the development.

15 As I have earlier noted, the building is an adaptive re-use and refurbishment of an old industrial complex. The roofline is, except to the de minimus extent that skylights have been inserted on the reverse slopes of the saw-tooth shape, unchanged from its original industrial use. There has been a change by the incorporation of some windows in the eastern and western vertical faces but they do not provide any problems in terms of the performance criteria dealing with floor space ratio. Although the floor space ratio is exceeded, I can see nothing that would breach the performance criteria contained in the DCP by permitting the variation that I consider acceptable, namely the installation of the staircases and the use of the bedrooms 3 and the toilet facilities for habitable room purposes.

16 I asked both Mr Johnson, counsel for the applicant, and Ms Byrne, solicitor for the council, to address me on what should be the fate of the spaces presently being used as bedrooms 4. I am satisfied that it would be appropriate to permit some form of storage use of that space but in a fashion that would prevent it being used as habitable space. To that end, I am of the view that the appropriate response (being a condition capable of being imposed, I am satisfied, consistent with the decision of Mc Clellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685) would be to require a stud wall partition in each of the bedrooms 4 to be erected 1.5 m to the east of the present stud wall dividing what is now each bedroom 4 from the corridor and stairwell area.

17 I do not consider it is necessary to require the removal of the floorboards from the remainder of the space and I am also of the view that it would be appropriate to permit the use of the space beyond that stud wall for storage purposes only as there will be a deal of natural light available to it from the skylight and window apertures currently serving it. However, access to that space should be confined by being an opening in each stud wall to which I have just referred, confined to 900 x 900 mm dimensions and located at the northern end of such wall and in a line continuous with the doorway accessing each of those spaces.

18 The consequence of my decision will be that there will be a necessity for revised plans to give effect to the decision, the incorporation of a variety of conditions arising from the engineering report; from Mr Koikas' report; from the discussion with Mr Erbas about ducting to provide access to fresh air for the purposes of the mechanical ventilation system; and for several matters concerning insulation that are contained in conditions prepared by Mr Threlfo and tendered on behalf of the applicant and a number of other matters.

19 I would therefore propose to give directions to allow the applicant a period of time within which to prepare the plans and the council to prepare revised conditions to give effect to my decisions. The outcome of the appeals, I should note, will be that in Matter No 10757 of 2007 (being the appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979) will be that the appeal will be upheld and the order will be discharged. In Matter No 10076 of 2008, the orders will be that the appeal will be upheld and modification will be granted, subject to the revision of the plans and the revision of the conditions to reflect the terms of this decision.

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