Madz v The Council of the City of Sydney

The Site and Locality

1. The site is legally described as Lot F in DP 928957. The site is known as 8 Belmore Lane, Surry Hills. A part four (4), part five (5) storey detached dwelling is located on the site.
2. The original architect named the subject dwelling 'Small House'. Following its construction, the dwelling was awarded the World House of the Year award at the 2011 World Architectural Festival.
3. The total site area is 45.79sqm. The site has a primary street frontage of 7.415m to Bellevue Lane and a secondary street frontage of 6.14m to Belmore Lane. Vehicle and pedestrian access is from Bellevue Lane.
4. The existing dwelling contains a car parking and storage area at ground floor level, a bedroom at level 1, living and dining areas at levels 2 and 3 and a roof terrace with an enclosed stair access and weather protection atrium at level 4.
5. The site is not a heritage item but is located within the Albion Estate Heritage conservation area (C58).
6. Surrounding land uses are residential and commercial. To the North of the site at number 1 Bellevue Lane is located a two (2) storey residential dwelling. It is relevant to the subject appeal that Council granted consent for the demolition of the neighbouring dwelling and the construction of a four (4) storey dwelling on the neighbouring site in 2013.
7. Further to the north of number 1 Bellevue Lane is located a 10 storey commercial building.
8. To the east of the subject site is located a row of two (2) storey terrace dwellings with primary frontages to Bellevue Street. The dwellings are contributory items within the Albion Estate Heritage Conservation Area.
9. To the south of the site are located mixed use buildings ranging from two (2) to six (6) storeys with primary frontages to Foveaux Street. A six (6) storey boarding house has recently been completed at 46 - 48 Foveaux Street.
10. To the west of the site are located two (2) storey commercial buildings and residential dwellings that are contributory items within the Albion Estate Heritage Conservation Area.
11. An overall map of the subject site is contained in Council's Statement of Facts and Contentions at Figure 1.

Planning Controls

1. The following planning legislation, environmental planning instruments, development control plan and policies apply to the site: 1. Environmental Planning and Assessment Act 1979, as amended; 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 3. Sydney Local Environmental Plan 2012 (hereafter referred to as "SLEP2012"); and 4. Sydney Development Control Plan 2012 (hereafter referred to as "SDCP2012").
2. A summary of the relevant SLEP2012 and SDCP2012 development standards and planning controls is provided as follows: 1. The site is located within the R1 General Residential zone. The proposal is defined as works to an existing detached dwelling and is permissible within the zone. The objectives of the R1 General Residential zone are as follows; To provide for the housing needs of the community. To provide for a variety of housing types and densities. To enable other land uses that provide facilities or services to meet the date to day needs of residents. To maintain the existing land use pattern of predominantly residential uses. 1. Height in metres: SLEP2012 sets a development standard for the maximum height of building for the site of nine (9) metres; 2. Height in storeys: SDCP2012 sets a maximum building height in storeys control for the site of two (2) storeys; 3. Floor space ratio: SLEP2012 sets a development standard for Floor Space Ratio (FSR) for the site of 1.75:1; 4. Given the site is mapped within the heritage conservation area, and contains a heritage item, cl 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of SLEP 2012, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4). When the relevant SLEP2012 and SDCP2012 heritage provisions were prepared, the subject site contained a carpark. Consequently, the site is not identified as a contributing, detracting or neutral site within the Albion Estate Heritage Conservation Area. 5. SEP 2012 at cl 6.21 addresses Design Excellence. Sub-cl [(2)] states: (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies As external alterations to an existing building are proposed, sub-cl (3) provides that development consent must not be granted unless, in the opinion of the consent authority, the development exhibits design excellence. This clause acts as a precondition to consent. (Exhibit 2)
3. The heritage experts of both parties agree that the existing building on the site is appropriately identified as a neutral item. A locality statement for the Riley area is provided at cl 2.11.12 of SDCP2012. The relevant extract is as follows: The existing mixed use character of the precinct will be maintained new infill is to respond to the existing character and scale of development. Existing rows of consistency are to be maintained such as intact terrace house streets and heritage street wall buildings. Development opportunities will be primarily located on larger lots and less consistent streets. Retail uses will be concentrated along Foveaux Street to enhance existing retail and assist in the retention of residential pockets. (Exhibit 1)

Expert Evidence

1. The Court heard expert heritage evidence from Mr Hui Wang for the City of Sydney and Mr Stephen Davies for the application. Their joint expert report was tendered as Exhibit 4.
2. Expert town planning evidence was given by Mr Adrian McKeown for the City of Sydney and Mr Tony Robb for the applicant. Their joint expert report was tendered as Exhibit 3.

Are the requests to vary the height and floor space standards well founded and worthy of support?

1. SLEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. However, Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed that matters required to be demonstrated by cl 4.6(3), namely: 1. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. That there are sufficient environmental planning grounds to justify contravening the development standard.
2. Whether the Court accepts the applicant's cl 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.
3. Given these provisions must be satisfied to provide the consent authority power to approve the proposed development I will address the cl 4.6 variation request, prior to consideration of the merit contentions.

What are the exceedances sought?

1. The Height of Buildings Map referred to at cl 4.3(2) of the SLEP2012 provides a maximum height for the subject building of 9m. 1. The existing dwelling on the site exceeds the height control with a maximum height of approximately 14.88m. 2. The proposed works involve extending the existing fifth storey of the dwelling to the southern property boundary and constructing a new outdoor terrace above with a 1m balustrade at the roof level. 3. The proposed works will increase the height of the existing dwelling by 1.6m at the southern boundary and by 1m (the height of the balustrade) at the northern boundary. The proposal results in an amended maximum height of approximately 15.85m above existing ground levels (Figures 14 and 15 below). 4. The maximum non-compliance with height of buildings development standard is approximately 6.85m (76.1%).
2. The SLEP2012 Floor Space Ratio map specifies a FSR for the site of 1.75:1. The existing dwelling was approved under the former South Sydney DCP planning control that at the time of assessment also specified a FSR for the site of 1.75:1 (80.1sqm).
3. For the purposes of assessment of the subject application, the FSR for the existing dwelling has been calculated using the current FSR definition provided by SLEP2012. This results in an additional 17sqm of gross floor area and exceeds the development standard as follows: 1. A new FSR of 3.5:1 is proposed; and 2. The proposal exceeds the FSR development standard for the site by 80sqm.
4. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Justice Preston CJ outlines that Commissioners in exercising the functions of the consent authority on appeal have power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and they are satisfied that the matters required to be demonstrated have been adequately addressed (c. 4.6(3)(a) and cl 4.6(4)(a)(i)). 4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). I have applied these tests to the current application in the following.

Consistency with the zone objectives

1. The site is within the R1 General Residential zone, the objectives of which were provided earlier in the Judgment. In these proceedings neither the planning experts or the Council agree that the proposed development is inconsistent with the objectives of the R1 zone.
2. The tendered cl 4.6 variation request argues that the variation "promotes the objectives of the zone and the development standard for height and therefore is considered to be in the public interest" [Exhibit C].

Findings

1. I am satisfied that the proposed development is consistent with the zone objectives which seek to: provide for the housing needs of the community; provide a variety of housing types and amenities and maintain a land use pattern of predominately residential uses.
2. Pursuant to cl 4.6(4)(a)(ii), I find the proposed development is compatible with the zone objectives.

Is the development consistent with the objectives of the standard?

Height

1. The objectives of the standard are provided at cl 4.3 of SLEP2012 as follows: (a) To ensure the height of development is appropriate to the condition of the site and its context, (b) To ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) To promote the sharing of views, (d) To ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) In respect of Green Square: - to ensure the amenity of the public domain by restricting taller building to only part of a site, and - to ensure the built form contributes to the physical definition of the street network and public spaces. Council argues that the development is inconsistent with objective (a) (b) and (c).
2. As such the Council argues that the cl 4.6 should not be upheld, and consequently the development refused as the height of the development is not appropriate to the condition of the site and its context; fails to provide an appropriate height transition between the subject development and contributory items in the Heritage Conservation Area and does not promote the sharing of views (Exhibit 2).

Objective (a):

1. It is the evidence of Mr McKeown that "the proposal to infill the existing area of private open space at the upper level of the dwelling and increase the height of the dwelling by 1.6m at the southern boundary has significant environmental impacts for the locality, the subject dwelling and dwellings adjoining the site." (Exhibit 3). In assessing the proposal against objective (a) Mr McKeown concludes: The prevailing form within the conservation area is 1 and 2 storey buildings facing Bellevue Street, Belmore Lane (to the east of the site) and Belmore Street to the west of the site. Taller commercial and an adaptively reused warehouse to the north and east of the site are anomalous to the locality and do not inform the character of the conservation area.
2. Further he argued in oral evidence that the additional bulk on the southern boundary that arises from the proposal has a deleterious impact on the contributory terraces fronting Bellevue Street. He concludes that the masonry section of the existing building reaches a continuation of the rear parapet of the existing terrace at 45 Bellevue Street and provides a successful transition in height down Bellevue Lane.
3. It is Mr McKeown's evidence the word "context" in objective (a) of the height objectives should not be constrained to be principally a consideration of the visual catchment from the site. He argues that context has three (3) factors: 1. The characteristics of the site itself; 2. The surrounding built forms; and 3. The relevant planning controls.
4. In applying this categorisation it is Mr McKeown's conclusion that the proposed development is not appropriate in the context of the site. Mr McKeown accepts the admission of Mr Pickles that the term "condition" in objective (a) be given the meaning ascribed by Brown C in Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001 at 47; namely: "...I have given the words "condition of the site", a broad meaning that includes the physical characteristics of the land that would include slope, any changes to the natural topography, natural features and the like as well as the improvements on the land, including any special features such as the heritage significance of the building, in this case."
5. Mr McKeown acknowledges the small site area and dual laneway orientation of the site but argues that the proposed alterations to the architecture of the existing dwelling detrimentally impact the architecture of the existing dwelling, provide reduced amenity to the private open space and results in a poor urban form to Belmore Lane.
6. In the alternative it is the evidence of Mr Robb that:

• no overall height increase is proposed except for a light weight balustrade at roof level which is setback from the existing building lines.
• the additional building envelope has limited visibility from the public domain
• the proposal does not significantly alter the simple form of the existing building and is consistent with the original architectural intent
• the council and the experts agree that the existing building achieves good contextual fit. The proposed alteration will not constitute a significant change in the relationship between the existing building and its context as demonstrated by the view perspectives provided by the applicant and the viewing of the height pole undertaken at the commencement of proceedings.

1. The clause 4.6 variation request address the compatibility of the development with the context and condition of the site as follows: The site and existing development is somewhat unique being a five-storey dwelling on a site of limited area. The build form context of the development is varied in nature and we submit there is not prevailing characteristic form in the locality. The locality includes a 10 storey commercial building to the north with an eight (8) storey commercial building just beyond that with five (5) and six (6) storey residential flat building interspersed by two (2) and three (3) storey terraces. There is a general progression in scale from the west to the east from the predominant terrace forms along Belmore Street to the more massive forms on Bellevue Street as previously discussed an increase in height on the existing development will result a better transition in form in an east to west plane. The commercial building located to the north of the site (separated only from the site by the dwelling at 8A Bellevue Lane) dominates the locality in terms of its massing and visual impact. As shown in the figure below, the proposed development will also result in a better transition in height between the higher forms to the north and the other higher forms with a frontage to Foveaux Street than the existing development. The site immediately to the north is the subject to a current consent and the outline of the approved building is shown below. The proposed development does not introduce any unacceptable additional impacts in terms of unacceptable massing or modulation relationships between the two properties since the only increase in height occurring in proximity of the northern site boundary comes about as a result of the proposed light-weight glazed balustrade which is setback from the northern building line. (Exhibit C)

Findings

1. At the commencement of the proceedings the parties undertook a site inspection which included a view of the subject proposals height (represented by a height pole) from the surrounding streets.
2. I am satisfied the context of the site is appropriately understood as its visual catchment (Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001 at [47]). This is particularly the case in this matter given the topography and narrowness of the surrounding streets. These factors have the effect of restricting the angle of view to the site and the proposed alterations and are conditions relevant to the consideration of the site.
3. I note that the planning and heritage experts are agreed that the existing build provides a satisfactory contextual fit.
4. I accept the evidence of Mr Robb that the proposed development will not constitute a significant change to the contextual fit achieved by the existing building.
5. Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with objective (a) of the height standard.

Objective (b):

1. Objective (b) of the height standard seeks to ensure appropriate height transitions between new development and heritage items and buildings in the Heritage Conservation Area. Relevantly this objective does not restrict the test of compatibility to only contributory items within the Heritage Conservation Area.
2. Further to the preceding evidence Mr McKeown argues the development fails to satisfy this objective on the following grounds:

• The existing dwelling on the site provides a suitable transition in relation to height between two 2 storey dwellings located on Bellevue Street and 2 storey commercial and residential buildings to the west of the site facing Belmore Street;
• The suitable transition is achieved by the provision of a generous setback for the subject dwelling to the southern boundary at its upper level. The dwelling has been constructed using off-form concrete that is light in colour and not visually dominating over neighbouring terrace dwellings;
• The proposal involves constructing a new addition to the upper level of the dwelling that will infill the existing setback to the southern boundary replacing private open space that is open to the sky with a new addition that is dark in colour. The use of materials that are dark in colour result in an amended proposal that is highly visible from surrounding streetscapes and that provides a poor height transition between contributory building to the east and west within the heritage conservation area;
• The proposed alterations to the geometry of the existing dwelling do not respect the character and roofscape of an approved development application (not yet constructed) within the subject site and the neighbouring site to the north (Figure 10 below);
• With regard to buildings to the north and south of the site, the proposal does not result in any particular benefits in relation to streetscape character. Buildings to the south of the site with frontages to Foveaux Street are taller than the subject dwelling as reflected by the higher SLEP2012 height standard of 18m. Commercial buildings to the south of the site are anomalous to the heritage conservation area and do not contribute to the character of the locality that is primarily 2 storey. (Exhibit 3)

1. Further Mr McKeown relies on the evidence of Mr Wang who concludes the proposed development does not achieve appropriate height transitions or contextual fit. Mr Wang argues: The northern side of Belmore Lane between Bellevue St and Commonwealth St remains low scale (mainly two storeys) and fairly consistent. As the development is on the northern side of the lane, it should conform to this low scale residential character. The developments on the southern side, are of a different zoning and demonstrate varied characters. They should not be used as a justification for the proposed addition. Further, the existing building has an acceptable relationship with Belmore Lane, considering the building's footprint is small and the wall height refers to the corner terrace house to the east. Though it is taller than other buildings on the northern side of the lane, it is not visually intrusive. The top level structure, of a different form and finish, takes less than half of the frontage of Bellevue Lane. It has a low floor-to-ceiling height and was not designed as a habitable space. It is read as being secondary and a rooftop element, rather than an additional storey topping out the concrete building. An increase of the height of the lane-facing walls, will make the building at 8 Belmore Lane stand out from the northern side of the lane. The addition will exacerbate the new building's verticality and tower form, which is in contrast with other horizontally proportioned side elevations on the northern side of Belmore Lane. The extension also forms a full new storey on top of the concrete form. It alters the existing building's appearance and its minimalist style. The additional height and a different building finish of the top level will add the visual prominence of the dwelling. He considers the addition makes the existing building detract from the character of the two adjoining lanes. (Exhibit 4)
2. In the alternative it is the evidence of Mr Robb that the intent of the objective should be considered in a wider context, and against the backdrop of the larger warehouse in Bellevue Street. Mr Robb relies on Figure 3 of the Joint Report and the site inspection to conclude that with the immediate vicinity of the site the built form cannot be characterised as predominately two storey. Rather he argues that there is a "general progression in scale from the west to the east from the predominant terrace from along Belmore Street to the more massive forms on Bellevue Street."
3. It is Mr Robb's evidence that in this context the proposed extension will remain appropriate with this existing transition and contribute to it, in particular given the development will maintain the dominance of the of the ridge of the contributory terraces fronting Bellevue Street (Exhibit 3).
4. Mr Davies evidence is that "the grading of the lane and the character of the area will not be detrimentally affected by the proposal. The significance of the general character of the area will be undiminished by the proposal due to the quality of the existing building, the sympathetic design of the proposed extension the form and scale of the proposal and the context of the building." (Exhibit 4)

Submissions

1. In relation to the development consistency with objective (a) and (b) of the height standard Mr Pickles makes the following key submission:

• the Council and the experts accept and agree that a five storey building is acceptable. A small glazed balustrade and a minor increase in floor plate can't be material enough to render the development incompatible
• the contextual fit sought by the height standard objectives should be informed by the locality statement and the statement of significance of the Heritage Conservation Area

1. Mr Pickles notes that the statement of significance for the Albion Estate Heritage Conservation Area provides the following physical description of the area and specifically of Belmore Lane: The area general has a varied mid to late Victorian streetscape character, with the predominant building form being Victorian terrace housing of various styles (Victorian Georgian and Victorian Filigree generally), interspersed with later layers (Federation, inter war & post war) of significant and non-significant development (eg 1970s multistorey office buildings in Foveaux) of greater scale as a result of rezonings, site consolidation and redevelopment from the early 20th century to the 1970s. The conservation area is characteristic of fine grained 2 storey Victorian terrace housing generally built to street alignment or with verandahs/balconies to street alignment. Large scale commercial heritage items to east side of Mary St and north side of Foveaux Street, Some commercial/industrial or larger scale modern residential detracting development intrusions into predominantly terrace housing streets (eg. Commonwealth St, Belmore St, Bellevue St). … Belmore Lane: Victorian Service Lane, Inner City Character, Street Rating: A …
2. Mr Pickles submits that the statement of significance identifies the importance of the variety of built form that the existing transitional arrangements between the subject building and buildings in the Heritage Conservation Area that remain largely unchanged by the proposal.
3. Mr Singh submits that the existing building was approved under a different legislative scheme that applied a different test to that required by cl 4.6. Mr Singh argues that consistent with the reasoning in Bellevue Street Holdings Pty Limited v Council of the City of Sydney [2016] NSWLEC 1125 the Council argues that the scale of laneway development sought to be retained by Council in the height control objectives is to maintain the prominence of the two storey built form of the Victorian terraces. He argues that the applicant places undue weight in considering compatibility and the achievement of appropriate height transition on buildings in the locality that are anomalous or dominant and detracting.

Findings

1. Objective (b) of the height standard seeks an appropriate transition, in relation to height, between the proposed development and heritage items and buildings in the Heritage Conservation Area.
2. I accept the submission of Mr Pickles that the statement of significance for the Heritage Conservation Area is a relevant consideration in determining whether the proposal ensures appropriate height transition.
3. I accept that both the statement of significance and the locality statement (cl 2.11.2 SDCP2012) acknowledge the mixed use character and varied nature of built form in locality. This is certainly evident in the context of the subject site.
4. I accept the evidence of Mr Davies and Mr Robb that the proposal achieves an appropriate transition between the development and buildings in the Heritage Conservation Area and adopt their reasoning.
5. I find that the transitional arguments between the proposal development and building within the Heritage Conservation Area remain largely unchanged by the proposal
6. Pursuant to cl 4.6(4)(ii), I find the development is consistent with objective (b) of the height standard.

Objective (c):

1. Objective (c) of the height standard seeks to promote view sharing. The council argue that the proposed partial enclosure of the existing roof terrace at level 5 of the building will result in view impacts to residential units with 60-62 Foveaux Street Surry hills. The specific units front Forveaux Street but have a balcony addressing Belmore Lane.
2. Both planning experts agree that there is no significant view loss experienced by Unit 18 [level 4] arising from the subject development (Exhibit 3).
3. No access was able to be obtained to assess view impacts for the apartments at level 2 and 3 of 60-62 Foveaux Street. However, the applicant has provided drone photographs taken from immediately in front of the balconies of these apartments to assist in the assessment of any view impact from the proposal. (Exhibit F)
4. It is Mr McKeown's evidence that the proposed development will have a significant view impact on the private open space of the unit at Level 3. He concludes that the proposed extension at Level 5 will result in a substantial impact to the view of the CBD skyline. He argues that such an impact is unreasonable as it arises from a variation to the height control.
5. In the alternative it is the evidence of Mr Robb that the relevant photograph in Exhibit F demonstrates that it is inappropriate for it to be categorised as a "view" and is more appropriately considered an "outlook". He argues that the development maintains sufficient outlook for the urban character of the scene to be retained.
6. The experts agree that there is no impact from the development on the unit at Level 2, 60-62 Foveaux Street.

Findings

1. Whilst the resident of Unit 8 remains concerned about the impact of the proposal I accept the evidence of the experts that the view impact on the relevant apartments at Level 2 and Level 4 of 60-62 Foveaux Street arising from the development is acceptable.
2. In relation to the impact to the Unit at Level 3 I am satisfied that for objective (c) to be offended the impact must be to a "view". I accept the evidence of Mr Robb that the scene depicted in Exhibit F is more appropriately categorised as an "outlook". My reasoning is that is not a prospect of a recognised or specific landmark, it does not contain elements that are characteristic of a specific locality; nor does it provide a sight of a specific landscape or particular aspect of something.
3. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the development is consistent with objective (c) of the height standard.

Floor space

1. The objectives of the floor space standard are provided at cl 4.6(1) of SLEP2012 as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

What is the FSR exceedance?

1. The planning experts agree that: SLEP2012 specifies a Floor Space Ratio for the site of 1.75:1. The subject proposal results in an additional 17sqm of gross floor area and exceeds the development standard as follows: a new FSR of 3.5:1 is proposed; and the proposal exceeds the FSR development standard for the site by 80sqm (100%) under Clause 4.6 of the SLEP2012, Council is required to consider a written request provided by the applicant for development that contravenes a development standard. A written request has been provided by the applicant, in relation to Clause 4.4 of SEP2012. (Exhibit 3)

Evidence

1. The submitted cl 4.6 variation request argues that the objectives of the standard are met on the following grounds: 1. In our view, the FSR development standard which has been applied to the site is inconsistent with the first of these objectives as the allowable floor space in the area is not sufficient to meet the anticipated development needs in the area which, as acknowledged by Council, is evident by most development in the area exceeding the standard. By accepting this Clause 4.6 variation request Objective (a) above would be better satisfied; 2. The additional floor space does not significantly increase the density of the approved development or significantly increase the built form or land use intensity. It does not increase the traffic generated by the development; 3. The existing and planned infrastructure in the proximity of the site is capable of accommodating this minor increase to the intensity of the development; 4. The proposed minor change to the built form will have a negligible impact on the desired character of the locality; will not create any additional overshadowing impacts; and will remove existing privacy related impacts, therefore resulting in a better outcome in this respect. The proposed development is considered to be consistent with, and would not hinder, the objectives of the FSR standard. On the contrary,, due to the removal of privacy related impacts, the proposed development is considered to better support the amenity related objectives of the standard.
2. On the evidence of its experts and reasoning similar to that provided in the preceding discussion of the height objective, Council argues that the variation to the FSR standard should not be upheld. In particular Council argues:

• Contrary to objective (b) the proposal results in inappropriate massing to existing and approved development to the north and east of the subject site.
• Allowing FSR above that previously approved for the site does not result in an improved outcome for the site as required by cl 4.4(d). In particular it results in a deleterious relationship to the contributory terraces fronting Bellevue Street.
• The proposed development will result in reduced amenity for the occupants of the dwelling resulting from the relocation of the POS.

1. In relation to the proposed relocation of private open space to the roof top it is the evidence of Mr McKeown that: I do not agree the proposal increases the amenity for its occupants. Where existing private open space is provided within close proximity to living areas, the proposed location for private open space is 2 storeys above the primary living areas and only accessible through a bedroom. ... This results in reduced amenity for the occupants of the dwelling. Further, I do not agree that relocating the existing private open space to the upper roof level will mitigate existing privacy impacts. Screen plantings are required for the new location where they can be provided in the current location as observed on site. (Exhibit 3)
2. In the alternative it is the evidence of Mr Robb that: The proposal will result in an improved outcome. It will achieve the housing needs of the occupants of the building; provide a useable and amenable area of open space; and, remove existing privacy impacts to and from the development, all without further significant adverse impacts on neighbouring buildings. (Exhibit 3)

Findings

1. Significant guidance in relation to council's "desired character of the locality" is provided in the statement of significance for the Heritage Conservation Area and the locality statement contained in SDCP2012.
2. Following a review of the evidence and submissions of the parties I find that the proposed development reflects the desired character of the locality in which it is located.
3. I am not persuaded on the evidence that the application fails to minimise adverse impacts on the amenity of the locality. As a result of the preceding I am satisfied the development is consistent with objective (d) of the FSR standard.
4. I accept the arguments in the variation request, as outlined in the preceding in relation to objective (c) and (b) of the standard. I am not persuaded that the marginal increase in bulk of the development offends the objective to regulate the density of development and built form.
5. The proposal by the applicant seeks to utilise the existing site and built form to increase the density of accommodation and allow for an additional bedroom. This provision results in a convenient relocation of the private open space. Whilst the experts have provided evidence on their views of the overall benefit and dis-benefits of this change, this is not my reading of the intent of objective (a). I am satisfied that by providing additional and more flexible accommodation that doesn't offend the remaining objectives of the standard the proposal is consistent with objective (a).
6. Pursuant to cl 4.6(4)(a)(ii) I find the proposal is consistent with the objective of the FSR standard.

Is compliance with the development standard unreasonable or unnecessary?

1. Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non-compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Council's own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
2. In this appeal the applicant seeks to utilise Wehbe test 1: that the objectives of the standard are achieved notwithstanding non-compliance with the standard.
3. I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP. I accept the evidence of Mr Robb and his reasoning provided in the preceding that the objectives of the standard are achieved notwithstanding the noncompliance. I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the height and FSR standard for the objectives of these controls to be achieved.

Are there sufficient environmental planning grounds to justify contravening the development standard? Height

1. The variation request provides the following grounds to support the exceedance of the standard: • There is a general progression in scale from the west to the east from the predominant terrace forms along Belmore Street to the more massive forms on Bellevue Street an increase in height on the existing development will result a better transition in form in an east to west plane; • The increase in height to the development will result in a superior urban design outcome due to the increased height contributing to a more appropriate transition in massing and the built form character between the buildings located within the block to the east and the lower form associated with the terraces to the west; • The proposed development, an element of which is an increase in height, has the effect of removing existing overlooking/privacy impacts (in both directions) between the existing roof terrace and the residential balconies to the south-east and the large windows associated with the commercial use directly opposite Belmore Lane to the south; • The proposal will replace the under-utilised and over looked terrace with a new roof terrace which will not be overlooked and will not introduce overlooking due to its considered siting, setback from the southern building edge. This will therefore result in an improved planning and amenity outcome in terms of the removal of impacts and the improved amenity of the occupants of the building; • The removal of the existing terrace and its replacement with a new bedroom will better support the Objects of the Act in terms of the promotion and co-ordination of the orderly and economic use and development of land by the utilisation of what is essentially a redundant area; • The proposed development, again an essential element of which is the increase in height at part of the development above the standard, will result in the improved internal functionality of the dwelling on this constrained site and to allow for the provision of a second bedroom which further supports the zone objectives in terms of meeting the housing needs of the community and to provide for a variety of housing types and densities; (Exhibit 1) FSR
2. The variation request provides the following grounds to support the exceedance of the standard: • The departure to the floor space ratio standard will not introduce any significant adverse environmental or amenity related impacts on neighbouring properties; • The increase in floor space at the uppermost level will remove existing privacy related impacts between the existing building at this level and the commercial use and residential flat building opposite Belmore Lane to the south and southeast; • No significant massing or modulation impacts are introduced as a result of the proposed additional floor space as the building wall in proximity to the neighbouring site to the north is not extended; • With regard to this site and development, in particular the proposed modification to the approved development which added further non-compliant floor space, Council has previously had little regard to the numeric quantity of GFA (noting the previous addition did not result in any change to the building envelope), but rather considered the merits of the resulting form. • We acknowledge that in this case the proposed additional floor space will result in an increase to the massing of the building, but as discussed above with respect to height: •The existing dwelling provides high amenity for its occupants whereas the proposal relocates POS to a location that is less accessible and neutral in relation to visual privacy impacts compared to the current location • The proposal to provide an additional bedroom can be achieved by converting level 1 of the dwelling from a living area to a bedroom The proposal results in view loss for neighbouring apartments in 60-62 Foveaux St. (Exhibit 1)
3. In the alternative Mr McKeown argues the variation requests should not be upheld. It is his evidence that there are insufficient planning grounds based on the following:

• The existing dwelling provides high amenity for its occupants whereas the proposal relocates private open space to a location that is less accessible and neutral in relation to visual privacy impacts as compared to the current location.
• The proposal to provide an additional bedroom can be accommodated by converting level 1 of the dwelling from a living area to a bedroom.
• The proposal results in view loss for neighbouring apartments in 60-62 Foveaux Street.

Findings

1. Having regard to the evidence and in particular the written objection prepared, I am satisfied there are sufficient environmental planning grounds to justify the variation to the height and FSR standard. In particular I am satisfied that the variations sought will result in a more flexible and resilient form of accommodation whilst still respecting and being architecturally responsive to the existing building.
2. The ongoing resilience, functionality and retention of the award winning house is an environmental planning aspect that is particular to the site. Similarly the retention of residential accommodation on a small allotment is consistent with the desire of the locality statement to retain residential land uses. I am not persuaded that the relocated private open space will be of reduced amenity in particular given the improved proximity of this space to bathroom amenities.
3. Finally, as required by cl 4.6(5) I am satisfied that the variations sought do not raise any matters of significance for State or regional planning that would warrant refusal of the variation request.
4. In short, I am satisfied there is no public benefit in maintaining the development standards in this particular case. The variation requests are in my opinion well-founded for the reasons stated.

Impact of the development on heritage significance

1. Council argues the proposed addition is not sympathetic to but detracts from the character of the conservation area and surrounding contributory buildings as follows: 1. in addition to its impact on the view from the corner of Belmore Lane and Bellevue Street and the impact on the setting of the contributory building at 45 Bellevue Street (Figure 16 above), the proposed additional bulk will generate adverse impact on the other views/vistas along Belmore Lane and Bellevue Lane; 2. the addition will add to the visual prominence of a corner building where it currently modulates in height towards Belmore Lane. The proposal emulates taller, anomalous and detracting building to the north of the site at Bellevue Lane and buildings to the south of the site at Belmore Lane; and 3. the addition will add complexities on the simple form of the existing building by creating a prominent top storey (which presents a difference form and finish from the lower levels) and a rooftop terrace. The proposal alters the proportions of the existing dwelling, resulting in a building that is not in keeping with the utilitarian character of Belmore Lane and Bellevue Lane.
2. It is Mr Wang's evidence that the proposed addition will have a detrimental impact on the neighbouring contributory buildings at 45 and 43 Bellevue Street. It is his view that these terraces are "significant historic character defining elements on both Bellevue Street and Bellmore Lane." It is his evidence that the setting and views to these terraces should be continued and not further deteriorated by any new developments (Exhibit 4)
3. He argues this is not achieved by the proposed development as it will appear higher than the corner terrace and will not relate well to the simple wall of the terraces fronting the laneway due to its complexity.
4. In his opinion the additional height, on both existing rooftop garden and on the top of the enclosed rooftop structure, is not compatible or sympathetic to the terrace house pair at 43-45 Belmore St and should not be supported. Further Mr Wang argues: ...the lanes are the significant character and fabric of a conservation area. They were derived from the early land subdivision and associated with the establishment of terrace housing on the main streets. The primary functions of the lanes were to provide service accesses and outbuildings for the terraces facing the streets. The scale of buildings on the lanes is always much subservient to the main houses. Though the development at No.8 Belmore Lane does not have to be 1 or 2 storey high, it should be tailored to avoid any inappropriate contrast with the scale and form of the adjacent contributory buildings. (Exhibit 4)
5. In the alternative Mr Davies does not consider the increase in height is such that it will detract from the appreciation of the contributory item. He considers the proposed development will have minimal visual impact and will not detract from the appreciation of the Heritage Conservation Area.
6. Mr Davies argues that any impact on Bellevue and Belmore Lane is minimal given the varied scale of buildings in proximity to the site. Further Mr Davies: ...considers that the grading of the lane and the character of the area will not be detrimentally affected by the proposal. The significance of the general character of the area will be undiminished by the proposal due to the quality of the existing building, the sympathetic design of the proposed extension, the form and scale of the proposal and the context of the buildings. (Exhibit 4)

Findings

1. With the benefit of the site view I accept the evidence of Mr Davies that pursuant to cl 5.10(4) the proposal will not have a detrimental impact on the significance of the Heritage Conservation Area I am satisfied that the statement of significance details the mixed use and layered development pattern of the locality with which the development is consistent.
2. I find that the proposed development does not detrimentally change the view of the contributory terraces or the reading of their outline against the sky.
3. I am satisfied that the effect of the development on heritage significance does not warrant refusal of the application.

Does the development exhibit design excellence?

1. SLEP2012 at cl 6.21(4) requires a consent authority to be of opinion the development exhibits design excellence prior to consent. The parties agree the relevant factors for consideration at 4(d) are: (iii) any heritage issues or streetscape issues; ... (v) the bulk, massing and relocation of buildings; (vi) street frontage height ... (xi) the impact on any special character area.
2. In oral evidence the experts agree that the existing building demonstrates design excellence.
3. The parameters requiring consideration under cl 6.21(4) mirror assessment and findings earlier in this Judgment. Based on that evidence and reasoning I am satisfied that the proposed development exhibits design excellence.

Conclusion

1. In determining this matter I have carefully considered the evidence and objections, the submissions and undertaken a detailed view. Having carefully considered the joint expert report and final submissions, I am satisfied in my assessment and evaluation against section 4.15 of the Environmental Planning and Assessment Act 1979 that the proposal warrants approval.

Orders

1. The Court orders that: 1. The objections pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 are upheld; 2. The appeal is upheld. 3. Consent is granted to Development Application No. D/2017/1176 for alterations to an existing part 4, part 5 storey dwelling to increase the area of the existing 5th storey such that it extends to the southern boundary and the addition of the roof top terrace at 8 Belmore Lane Surry Hills (Lot F, DP 928957), subject to conditions in Exhibit 6 and as attached at Annexure A. 4. The exhibits are returned with the exception of exhibits 2, 6, A and the Class 1 application. ……………. D M Dickson Commissioner of the Court Annexure A (213 KB, pdf)

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: 13 April 2018