Mod Urban Pty Ltd v Council of the City of Sydney [2022] NSWLEC 1606 | Case summary

Land and Environment Court (NSW)|2022-10-07

Judgment

COMMISSIONER: Three existing boarding houses fronting Crown Street, Darlinghurst are proposed to be altered, and behind which residential development is proposed in the form of 3 terrace houses addressing a laneway known as Rosella Lane.
The development, comprising alterations and additions to the 3 existing boarding houses, and the 3 terrace houses, is proposed on 3 separate lots, known as No.'s 148, 150 and 152 Crown Street, legally described as Lots 13, 14 and 15 in DP 211178.
To be clear, each lot contains a boarding house fronting Crown Street, and is proposed to contain a terrace house fronting Rosella Lane. This arrangement is repeated, albeit mirrored in one instance, on 3 adjoining lots.
The Amended Statement of Facts and Contentions, prepared by the Respondent (Exhibit 1) records that Development application No D/2021/1012 was lodged by the Applicant, Mod Urban Pty Ltd, with the Council of the City of Sydney (the Respondent) on 6 September 2021 and was notified between 29 October 2021 and 20 November 2021, and that the Applicant filed this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 28 October 2021.
On 6 April 2022, the Applicant amended the development application, that was further notified between 21 April 2022 and 13 May 2022.
At the commencement of the hearing, the Applicant sought to amend the development application by relying on further amended plans, later marked Exhibit A, to which the Respondent agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and which the Applicant advised was in the process of being lodged on the NSW Planning Portal.
The Applicant also amended the characterisation of the development to include the alterations and additions to existing boarding houses, noting works are limited to east of the existing stairs within the boarding houses.

The site and its context

The site is located to the east of Crown Street, close to the intersection with Stanley Street, with frontages to both Crown Street to the west, and Rosella Lane to the east.
When all 3 lots are considered, the total area of the site is 504.2m2, with each lot measuring as follows in area:

No 148 Crown Street is 169.2m2 in area
No 150 Crown Street is 167.8m2 in area, and
No 152 Crown Street is 167.2m2.

The sites are currently occupied by existing 3-storey boarding houses, attached to a group of 9 similarly fronted properties comprising addresses No.'s 136 - 154 when viewed from Crown Street.
A four-storey residential flat building occupies the nearby site at the intersection of Crown and Stanley Streets, beyond which the character is identified by the Respondent as mixed use with food and drink premises, commercial and healthcare uses.
A five-storey residential flat building occupies a site to the north of Rosella Lane, at 118-126 Crown Street.
The site is within a wider city block ('the block') formed by Crown Street, Stanley Street, Palmer Street and Barnett Lane.
The proceedings commenced onsite, where the Court heard an oral submission from a resident of 156 Crown Street, who also spoke on behalf of the strata body for that site. The concerns of the objector, whose written objection is contained in the Respondent's bundle (Exhibit 3, folios 127-129), and at Exhibit 12, may be summarised as follows:

The terrace development will overshadow north facing windows, reducing sunlight
The proposal is not in keeping with the heritage character of the area
Rosella Lane is a service lane, unsuited to additional traffic and parking demand, or additional waste collection.

After which, the Court in the company of the legal representatives and experts entered the existing boarding house at No 152, visiting Room No.'s 5 and 8. The Court was also taken inside the existing boarding house at No 150 Crown Street, and entered Room No 2.
As a result of observing the interior of the boarding houses, it was agreed by all that the layout of the existing as drawn in the architectural plans is at odds with the existing and actual position and layout of certain walls.
The Applicant further amended the architectural plans to resolve the error, and, on the second day of the hearing, the Applicant was granted leave to rely upon further amended plans, marked Exhibit D. The written request prepared in accordance with cl 4.6 of the SLEP was also corrected, and an updated BASIX certificate was provided
The Respondent agreed to the amendment in accordance with cl 55 of the EPA Regulation and the Applicant was directed to cause the amended application to be lodged on the NSW Planning Portal within 7 days and provide evidence to the Court of the same.
The Respondent also erected a height pole that was agreed to represent the gutter line of the proposed development fronting Rosella Lane, at the approximate setback from the existing boarding house.
Finally, the onsite view also included a walking tour of Rosella Lane, Crown Lane, Stanley Lane, Burnell Place, Woods Lane, Chapel Lane and Palmer Lane in which a variety of buildings types, eras and scales were identified by the respective experts in urban design and heritage.
The site is located in the B4 Mixed Use zone, according to the Sydney Local Environmental Plan 2012 (SLEP), in which development for the purpose of boarding houses is permitted with consent, and where residential development is permitted by virtue of exclusion from those uses that are prohibited.
The objectives for development in the B4 zone are: • 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.

The issues

As a consequence of amendments to the development the subject of the development application, a limited number of issues are resolved. The remaining issues may be summarised as follows: 1. the proposed development is an overdevelopment of the site, resulting in reduced level of amenity and servicing of the three existing boarding houses at the front of the site. 2. the proposal will have an overbearing impact on the low-scale character of Rosella Lane. 3. the proposal results in a poor level of amenity for current and future occupants of the development and will constrain the level of amenity of neighbouring residential properties. 4. the proposal is out of character with the heritage conservation area and the locality and detracts from the significance of the contributory terraces. 5. The proposed development is inconsistent with the design excellence provisions of the Sydney Local Environmental Plan 2012 (SLEP).
The Court was assisted by experts in the following disciplines: 1. In respect of town planning: Mr Matthew O'Donnell on behalf of the Applicant, and Mr Daniel Stanley on behalf of the Respondent. 2. In respect of urban design: Mr James Phillips on behalf of the Applicant, and Ms Julia Pressick, on behalf of the Respondent. 3. In respect of heritage: Mr James Phillips on behalf of the Applicant and Ms Priyanka Misra, on behalf of the Respondent.
The experts conferred to prepare a number of joint expert reports, marked as follows:

A joint town planning and urban design expert report (Exhibit 4)
A joint heritage expert report (Exhibit 5)
A supplementary joint town planning expert report (Exhibit 7)
A supplementary joint town planning, urban design and heritage report (Exhibit 8)

The development the subject of the development application

It is necessary to further explain the development proposed by the Applicant, and the questions it raises as to what is the development the subject of the development application.
The questions determine the sequence in which the Court must consider the respective aspects of the appeal before it.

Whether the proposed terraces are secondary dwellings

The Respondent considers the 3 terraces proposed to front Rosella Lane to be secondary dwellings, being a form of residential accommodation limited in size by controls found at cl 5.4 of the SLEP in the following terms: If development for the purposes of a secondary dwelling is permitted under this Plan on land other than land in a rural zone, the total floor area of the dwelling, excluding any area used for parking, must not exceed whichever of the following is the greater - (a) 60 square metres, (b) 30% of the total floor area of the principal dwelling.
The terraces exceed the limitations imposed by cl 5.4 of the SLEP, which is excluded from variation by cl 4.6(8) of the SLEP. As such, if the terraces are found to be secondary dwellings, no further matters are to be taken into consideration and the appeal must be dismissed.
Secondary dwelling is defined in the dictionary to the SLEP (Exhibit 3, Tab 15) as follows: secondary dwelling means a self-contained dwelling that - (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. Note - See clauses 5.4 and 5.5 for controls relating to the total floor area of secondary dwellings. Secondary dwellings are a type of residential accommodation - see the definition of that term in this Dictionary.
Two questions arise from the definition above: 1. Whether the existing boarding houses fronting Crown Street are considered 'principal dwellings.'. 2. Whether the new dwellings are established in conjunction with the boarding houses.
A dwelling is defined in the dictionary of the SLEP as follows: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
The parties rely upon a virtually identical stream of authorities to arrive at competing positions on whether the existing boarding houses are capable of being defined as a principal dwelling.
The Respondent ultimately cites Preston CJ in SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 (SHMH) to argue that just as His Honour, at [63], identified a BASIX affected building in identical terms to that of a dwelling according to the SLEP, a BASIX-affected building can be a dwelling, even where it comprises one or more dwellings.
Furthermore, the boarding houses pre-exist the proposed terraces to Rosella Lane, and occupy the same lot. As such, the boarding houses must properly be considered the 'principal dwelling' on each of the lots, resulting in the terraces being secondary dwellings on each of the lots.
Next, the proposed terraces are established in conjunction with the principal dwelling on each lot as understood in Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189; Garry William Parsons & Anor v Hornsby Council [1995] NSWLEC 69.
The connection, relationship or association creating the functional nexus between the principal dwelling and secondary dwelling is in the form of the shared passage proposed in the terrace development that allows access for resident, bicycle and waste collection between the boarding house and Rosella Lane; and cover to a portion of the private open space for the boarding house provided by the terrace.
The Applicant cites SHMH as an authority establishing that as boarding rooms contain the essential components of a domicile; such as sleeping, bathroom and kitchen facilities, boarding rooms are dwellings and it cannot be said that a building comprising multiple dwellings can, itself, be a dwelling any more than a residential flat building is a dwelling. Rather, it is a building that contains dwellings but eludes definition as a dwelling.
I accept the Applicant's submission that a boarding house does not answer the description of a 'principal dwelling' on two grounds. Firstly, as each of the boarding houses contain multiple dwellings that, in themselves, comprise the essential components of a domicile in the manner described by Preston CJ in SHMH, it is the boarding rooms that answer the description of 'dwellings'. Relatedly then, as the existing boarding houses contain multiple dwellings, I accept that a principal dwelling cannot be identified among them, and that the sum total of multiple dwellings is not, itself, a dwelling, let alone a principal dwelling.
As the boarding houses are not capable of being described as principal dwellings, it follows that the proposed terraces fronting Rosella Lane cannot be described as secondary dwellings, and so the provisions of cl 5.4 of the SLEP are not invoked.

The parking standard is breached

The development the subject of the development application does not propose parking for motorcycles onsite.
As the development application was lodged on 6 September 2021, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) apply to that component of the development that is for the purpose of a boarding house.
Clause 30 of the ARH SEPP contains development standards which, if not satisfied, preclude the grant of consent. Parties are agreed that the provisions are satisfied, but for cl 30(1)(h) requiring at least one parking space to be provided for a motorcycle, for every 5 boarding rooms.
No provision is made for motorcycle parking on the site.
The parties agree the development is, in part, for alterations and additions to existing boarding houses that are more than minor, and so the exclusion of subcl (1), by subcl (2), does not apply to suspend the requirement for motorcycle parking.
The Applicant relies upon a written request prepared in accordance with cl 4.6 of the SLEP dated May 202 (Exhibit C, Tab C). The written request identifies the departure from the standard results in a shortfall of 6 motorcycle spaces on the site.
The Court, exercising the functions and discretions of the consent authority on appeal, has the power to grant consent despite the contravention of development standards subject to two preconditions being satisfied under the terms of cl 4.6(4) of the WLEP.
The means by which satisfaction is to be reached on those two preconditions is succinctly put in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, at [22]-[24]: 22 The permissive power in cl 4.6(2) to grant consent to development that contravenes a development standard is subject to conditions that must be met before the power can be exercised. First, cl 4.6(3) requires the consent authority to consider a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating both of the matters in cl 4.6(3)(a) and (b), being: "(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard." 23 Secondly, cl 4.6(4) requires the consent authority to be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being: "(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out" 24 Only if the consent authority meets these requirements in cl 4.6(3) and (4) will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened.
The written request seeks to address the reasonableness and necessity of compliance with the standard required by cl 4.6(3)(a) of the SLEP, by asserting that the objectives of the standard are achieved notwithstanding the non-compliance. Three grounds are given in support of the assertion. 1. Firstly, absent a stated objective for the standard, the implied objective is said to be that provision of motorcycle parking reduces the reliance on cars and other motor vehicles. 2. Secondly, the proposal is consistent with the objectives for development in the B4 zone. 3. Thirdly, the objective at s 1.3(c) of the EPA Act, to promote the orderly and economic use and development of land, is achieved.
Next, the written request sets out environmental planning grounds it regards as sufficient to justify the contravening of the standard, by reason of the following: 1. The site has excellence accessibility to public transport options including high frequency bus services along Crown Street, William Street, and Oxford Street, and to train services at the nearby Kings Cross station. 2. A number of car-share vehicles are located within the vicinity of the site. 3. Motorcycle parking is able to be achieved on the street, or in nearby public car parks on Riley Street and William Street.
The written request also assert consistency with the objectives for development in the B4 zone, firstly, by maintaining existing boarding house accommodation and proposing new residential accommodation that is compatible with existing uses in the area. Secondly, the location is accessible, with good access to services, education and employment in the vicinity of the site, and because of the provision of bicycle spaces on the site which obviates the need for motorcycle parking and promotes cycling. Thirdly, provision of the particular kind of residential accommodation will support the businesses in the area, including restaurants and cafes.
While not stated in the written request, a notation on the architectural plans at Exhibit D shows a total of 24 bicycle spaces proposed on the site, stored on posts located in the private open space at the centre of the site.
I accept that the provision of 24 bicycles for a maximum number of 36 boarding house residents achieves the implied objective of the standard to reduce reliance on cars and other motor vehicles, that the site is in a highly accessible area that is well serviced by public transport and other amenities, and that the development is consistent with the objectives of the B4 zone. Accordingly, I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone, in accordance with cl 4.6(4)(a)(ii) of the SLEP.
Additionally, I have considered whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, and I find no grounds on which the written request should not be upheld.

The proposed development is inconsistent with the design excellence provisions of the Sydney Local Environmental Plan 2012 (SLEP).

The Respondent contends that the proposed development fails to demonstrate design excellence as defined in cl 6.21 of the SLEP. In particular, a high standard of architectural design, materials and detailing appropriate to the building type and location is lacking (cl 6.21(4)(a)), and the form and appearance of the proposed development will not improve the quality amenity of the public domain (cl 6.21(4)(b)).
The urban design experts agree that only certain provisions of cl 6.21 apply to the proposal, and the Respondent submits that certain matters agreed to be relevant are not engaged with by the Applicant's expert and so the Court is unable to form the necessary opinion required of it.
However, as shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga), it is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone. Instead, cl 6.21 prescribes a framework for deciding whether a development exhibits design excellence (Toga, at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).
Clause 6.21 of the SLEP is in the following terms: Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (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. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity. (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
Those issues set out at cl 6.21(4)(a), (b) and (c) are, in my view, somewhat contingent upon findings with respect to the issues within subcl 6.10(4)(d). For instance, whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved (subcl (4)(a)), cannot be isolated from consideration of the bulk, massing and modulation of buildings at subcl (4)(d)(v) as all are aspects of architectural design.
Likewise, whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, being a consideration required by subcl 6.21(4)(b) of the SLEP, is inseparable, in my view, from considering the impact on, and any proposed improvements to, the public domain (cl 6.21(4)(d)(xi)).
Furthermore, those matters set out at cl 6.21(4)(a)-(c) are posed in terms of 'whether' the development the subject of the development application achieves certain things whereas those matters set out at cl 6.21(4)(d) are posed in terms of 'how' the proposal addresses certain matters.
Ms Pressick regards the land as unsuited to development (cl 6.21(4)(d)(i)) as the rear of each lot currently functions as open space, with access to sunlight and waste storage for the boarding house residents. In its place, the proposed terraces are of a form and scale that is an uncharacteristic type of development in Rosella Lane, and which reduces solar access and outlook from the existing boarding house rooms that rely on such amenity to offset the undersize of rooms to the rear.
Relatedly, the use mix proposed (cl 6.21(4)(d)(ii)) in the development introduces three new dwellings on the site of existing boarding houses without adequately addressing the ongoing needs for boarding house residents in respect of waste, bicycle parking, deep soil, canopy cover and the like. As it is put by Ms Pressick, the impact of the two uses on one another is not adequately resolved. This is evident in a physical separation between the two types of development proposed that is 2.4m at its closest that has the effect of reducing window openings in the living spaces of the proposed terrace dwellings to manage visual and acoustic privacy, while placing large west-facing balconies at the uppermost level in close proximity to Rooms 5 and 8 in each boarding house.
The experts engaged at length as to how the proposal seeks to address heritage issues and streetscape constraints, that are the subject of cl 6.21(4)(d)(iii), and of a contention with particular respect to laneway character.
As stated at [20], the Court was taken to a number of laneways in the immediate area during the onsite view, some of which are depicted in Appendix C of Exhibit 4.
In broad terms, the parties dispute the degree to which the proposed terrace development to the rear of the site should conform to the existing character of Rosella Lane, or rather, to the existing character of the local area which is more diverse, with a greater number of two-storey, bald face terraces.
In summary, Rosella Lane is generally agreed to be, but for the developments 'book-ending' the block, predominantly single storey garaging and rear yards.
This setting largely defines the heritage issues at play in the circumstances of this matter. The site is located in the East Sydney Heritage Conservation Area (C13) (East Sydney HCA), according to Sch 5 of the SLEP, and is also in the vicinity of a number of items identified for local heritage significance, including: 1. Terrace group, including interiors at 169-171 Palmer Street (item I422) 2. Terrace house including interior and front fence, at No.'s 128, 130-132, and 134-136A Crown Street.
The Statement of significance for the East Sydney HCA (Exhibit 5, Appendix B) is as follows: "The East Sydney Conservation Area has historic and aesthetic significance for its ability to demonstrate the development of an inner-city suburb during the mid to late nineteenth century, with later overlay. The area demonstrates the predominantly small lot subdivision, along a grid pattern based on Darlinghurst Road and Oxford Street, that followed the subdivision of the Riley Estate in the 1840s and the incremental subdivision of the Darlinghurst villa estates during the second half of the nineteenth century. This pattern of subdivision, and the predominantly terraced housing that developed from it, reflects the rapid population growth in Sydney particularly during the period 1850 to 1900. Development related to institutions as well as residential flat development during the inter-war period (c.1919-1940) is also demonstrated. The topography and dense urban form of the area create a strong sense of place and significant district vistas from higher areas. The area contains a number of aesthetically significant and prominent buildings such as the former St Peter's Church, Burton Street Tabernacle, former Palmer Street Presbyterian Church Group, Caritas House and the former Darlinghurst Police Station, as well as a number of fine terraces and inter - war residential flat buildings. The area has historic significance for the important institutions that are to be found within it including SCEGGS Darlinghurst."
The boundaries of the East Sydney HCA appear similar but not identical to the East Sydney locality at Section 2.4.9 of the Sydney Development Control Plan 2012 (SDCP), in which the site is also located. The locality statement for East Sydney is in the following relevant terms: "This locality sits in a valley framed by Central Sydney and Oxford Street, and falls toward William Street, with a low point between Yurong and Riley Streets… Major roads and significant topographic ridges at the perimeter defi ne this area. The built form comprises low scale buildings in the valley framed by taller buildings on the surrounding ridges. This sense of enclosure is reinforced by taller commercial/retail buildings located along the major roads of College, William and Oxford Streets, while the regular small lot pattern streets to the centre of the neighbourhood are predominantly residential terrace housing. The existing general built form character of the area is to be maintained and reinforced with taller buildings located along ridges and major roads towards the perimeter of the neighbourhood. Low scale buildings and residential pockets are to be maintained towards the centre of the area in the valley. … The heritage streetscape character and small lot subdivision pattern of the residential pockets together with consistent residential streetscapes and and (sic) the remnant Victorian character of buildings are to be maintained. …"
The principles applicable to the East Sydney locality are: "… (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. … (f) Maintain the predominant Victorian heritage character of the area. (g) Retain the uniformity of pairs and rows of consistent terraces including the single storey row on Burton Street (between Thomson Street and Bourke Street). …"
The block in which the site is located, appears on a building contributions map (Exhibit 3, folio 266a) that depicts a majority of properties in the block as 'contributory', with the two residential flat buildings in the block as 'Neutral', in the case of No 156 Crown Street, and 'Detracting' in the case of No.'s 118-126 Crown Street.
According to Ms Misra, this is consistent with 19 of the 28 terraces backing on to Rosella Lane being listed for their heritage significance, with no multi-storey structures evident in the rear on the lane itself.
Instead, the proposal is for a bulk and scale more akin to that of the two-storey principal building form of the group of terraces located on the eastern side of Rosella Lane, fronting Palmer Street beyond, referred to by the experts as the 'Bakers Dozen', with single storey garages to Rosella Lane, depicted in Figure 1 of Exhibit 5 (re-produced below):
Similarly, the terrace group to the north of the subject site(s) at No.'s 128-136A also demonstrate a uniform pattern of open yards to the rear.
By contrast, the proposal introduces a built form of substantial and unprecedented scale, massing and bulk to the Lane that is incompatible with the East Sydney HCA, and the built character of Rosella Lane.
Any rear development to a contributory terrace should be, according to Ms Misra, subservient in its scale and bulk to the primary terrace form if it is to be compatible with the hierarchy and historic pattern of development in this city block.
In support of Ms Misra's evidence, the Respondent relies on the provisions of Section 3.9.6 of the SDCP, dealing with development in Heritage Conservation Areas in the following relevant terms: "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. (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: (a) topography and landscape; (b) views to and from the site; (c) significant subdivision patterns and layout, and front and side setbacks; (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (e) the interface between the public domain and building alignments and property boundaries; and (f) colour schemes that have a hue and tonal relationship with traditional colour schemes. … (2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above. … (4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area."
Section 4.1.6 of the SDCP deals with Secondary and Laneway dwellings. As stated at [40], I do not accept that the proposed terraces answer the description of 'secondary dwellings'. However, the provisions of Section 4.1.6 also apply to laneway dwellings, that are not defined other than for their frontage to a lane.
Ms Pressick adopts the controls in Section 4.1.6.1 of the SDCP to offer two alternatives in bulk, massing and modulation (cl 6.21(4)(d)(v)) in the joint report (Exhibit 4) that demonstrate laneway development on the site more consistent with the predominant scale of the lane, and seeking a lower street frontage height (cl 6.21(4)(d)(vi)).
Notwithstanding the Respondent's efforts to control development on sites with heritage significance and in heritage conservation areas, Mr Phillips considers the presentation of garaging to Rosella Lane to be "unedifying", in stark contrast to those laneways in the area activated by informal community greening programs and the like, such as in Palmer Lane.
It is this wider area to which the locality statement at [70] refers in stating "The existing general built form character of the area is to be maintained and reinforced…", rather than the character of Rosella Lane in isolation.
Similarly, Mr O'Donnell cites what he describes as a wider strategic objective for activation in laneways which has the advantage of providing greater level of pedestrian safety through casual surveillance.
So understood, Mr Phillips regards the form of the proposed terraces to be of a bulk, massing and modulation, and street frontage height typical for terraces in the area, identifying that the three terraces step down in height to respond to the fall of Rosella Lane.
The height and depth of the proposed terraces also impose environmental impacts on the private open space in the centre of the site, according to Ms Pressick including overshadowing and solar access (cl 6.21(4)(d)(vii)). While the ground floor plan shows the private open space to the boarding houses to be a minimum dimension of 3m, the effective width, when development over a portion of it is understood, is 2.4m.
According to Mr O'Donnell, the private open space serving the boarding houses is an improvement on the existing area that shows signs of neglect. Instead, the proposed area is formalised and landscaped, adjoins the communal room and includes a covered area for inclement weather. Additionally, its use will be managed by a Plan of Management that limits use to the hours of 7am to 7pm.
With respect to solar access, I note the planning experts are agreed that the proposed terraces do not achieve the direct sunlight required by Section 4.1.3.1, Provision 1, of the SDCP. "Development sites and neighbouring dwellings are to achieve a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June onto at least 1sqm of living room windows and at least 50% of the minimum amount of private open space."
Relatedly, I also note the proposed terraces are not provided with private open space in which the required amount of sunlight is received. Private open space is required by Section 4.1.3.5, Provision 1, of the SDCP to be provided at the ground level, measuring 16m2 in area, and with a minimum dimension of 3m.
Instead, the Applicant provides private open space in the form of two balconies, the combined area of which modestly exceeds 16m2 in size. A balcony of approximately 12m2, with a minimum dimension of 2.5m, fronts Rosella Lane, adjacent to the first floor living area, and a balcony of approximately 5m2, adjacent to the attic bedroom, faces west.
As the attic balcony is within 3m of Room 5 and 8 in the boarding houses, Mr Stanley's view is that acoustic privacy of the boarding house residents in those rooms will be affected, contrary to objective (b) of Section 4.1.8 of the SDCP which seeks to respect the visual and acoustic privacy of neighbours.
It is also relevant to record here that waste storage for both the boarding house development, and dwelling house development, is located in a narrow passage connecting the communal open space of the boarding house, with Rosella Lane, illustrated on the ground floor plan, re-produced below:
The Respondent relies on photographs (Exhibit 8, Fig 1.5) to demonstrate the site currently uses 4 x 240L bins, located in the existing communal open space, but provision for only 3 x 240L bins is shown.
Mr O'Donnell understands that each site currently relies on 3 bins, with no history of complaints on the sites with respect to waste, and where existing demand on the site, proven through existing use, is sufficient with 3 bins, and not four as required by the SDCP, and where bulky waste can be removed quickly with a private contractor, obviating the need for 4m2 for bulky waste storage also required by the SDCP.
Even if fewer bins are proposed than current usage, the Plan of Management instructs that waste collection is by a private contractor, is to be monitored by the boarding house manager, and additional collections are easily arranged.
In the course of the proceedings, the Applicant identified a number of amendments it considers necessary to the Plan of Management, in respect of waste and access in particular, but also the application of the Plan of Management more broadly on the site.
The Applicant was granted leave to amend the Plan of Management for each of the boarding houses, that was subsequently filed with the Court on 17 October 2022.
I make the following observations on the amended Plan of Management, (unpaginated): 1. Each of the Plans of Management repeat an error evident in the previous version (Exhibit C, Tab D), claiming the boarding house contains a communal bathroom. It does not. 2. The boarding house is to be managed by an offsite manager, whose responsibilities include, relevantly, ensuring paths of travel from the premises remain unobstructed, cleaning of the garbage storage area and monitoring bin capacity and ensuring collection arrangements are made on an as needs basis. 3. Use of the outdoor communal area is limited to the hours of 7am to 7pm daily, and no amplified music, smoking, parties or large gatherings are permitted, which is to be monitored by the boarding house manager. To this end, residents of the proposed new dwellings will be provided with contact details for the manager for the purposes of complaints. 4. No access to the premises is allowed by residents from Rosella Lane, and the gate to Rosella Lane is only to be used for waste and maintenance purposes. 5. The obstruction of paths of travel that - in the sole discretion of the boarding house manager - may restrict the safe means of egress from the building is prohibited. 6. Waste collection for both the boarding houses and proposed dwellings to Rosella Lane is by private contractor. 7. Access to the bin storage area for boarding house residents is via the open space of that boarding house.
I consider access and other arrangements for waste storage and collection to answer the description of 'service access' (cl 6.21(4)(d)(ix)), such that the Court must form its opinion at cl 6.21(3) with regard to, inter alia, service access.
After considering those matters to which the Court must have regard, I am unable to find the proposed development exhibits design excellence for the reasons that follow: 1. Firstly, the proposed use mix on the site is not, in my opinion, satisfactorily resolved to achieve a high standard of architectural design, or detailing appropriate to the building type. In forming this opinion, I note that while both uses are residential in nature, certain physical and operational arrangements, intrinsic to the proposal, result in unacceptable environmental impacts. 2. The first of these impacts is in terms of acoustic and visual privacy resulting from the close proximity of the rear-facing balcony at Level 2 of the proposed terraces to boarding house rooms, and to the private open space of residents of the boarding house. In particular, while the Plan of Management imposes constraints on boarding house residents in terms set out at [97(3)], these constraints to not apply to residents of the terraces. No such constraint is placed on residents of the terraces in terms of amplified music, smoking, large gatherings or late use of private open space. The potential for impact on the boarding house use arises from a rear facing balcony in that part of the development that is not for boarding house use. I note the potential source of that impact is a balcony that contravenes the provision at Section 4.1.8.1 (1)(c) of the SDCP, discouraging rear-facing balconies. 3. The second of these impacts is in respect of sunlight and private open space. While the standards for boarding houses at cl 30 of the Affordable HousingARH SEPP do not require boarding house rooms, or private open space to receive sunlight, the same cannot be said for new dwellings in the Sydney Local Government Area. The terraces fail to receive the required direct sunlight to either at least 1m2 at the living room windows or to at least 50% of the private open space, and so fail to achieve the level of amenity required by Section 4.1.3.1 of the SDCP. 4. For completeness, I also note the communal living rooms proposed in the boarding house developments also fail to achieve the sunlight preferred at cl 29(2)(c) of the Affordable HousingARH SEPP. 5. The third of these impacts is in the failure to provide private open space to the terraces in accordance with the SDCP. The private open space for the terraces is not only split, but also elevated, not at ground level as required by Section 4.1.3.5 of the SDCP. I do not accept the argument put forward by the Applicant's planning expert that public reserves located 300m or greater from the site offers an equivalent amenity. Nor do I accept that the private open space for boarding house residents could just as easily be dedicated to the terraces. I reject this for two reasons: 1. Firstly, the planning of the terraces places the living spaces on the first floor, precluding it from extending into a private open space at the ground floor. 2. Secondly, to do so would deprive the boarding house of private open space, and so remove from the proposal an element desired by the must not refuse provisions at cl 29 of the Affordable HousingARH SEPP.
For the reasons above, I accept Ms Pressick's opinion that the conflict inherent in the proposal is not imposed by site constraints, but lies in the competing and disparate requirements of the use mix on the site that is unable to be satisfactorily accommodated on such a site. The impacts are imposed, in my opinion, because of the bulk and massing of the proposed terraces to Rosella Lane, that prevents private open space from being provided to those terraces in accordance with Section 4.1.3.5 of the SDCP, and locates rear-facing private open space within such close proximity, unconstrained by limits on hours of use, or the manner in which that space is used.
Additionally, I also accept Ms Pressick's view that the communal laundry being a stacked cupboard under the stairs in the boarding houses, and a stand-alone laundry tub in the common hallway cannot be described as demonstrating a high standard of architectural design or detailing appropriate to the building type, being a boarding house in which a number of unrelated residents should be able to access communal facilities with a minimum of inconvenience, either to themselves or fellow residents.
While the Affordable HousingARH SEPP, remarkably, does not require a communal laundry facility for residents, the Applicant nevertheless proposes such a facility.
The ground floor plan, Dwg DA101, shows a dimension of 900mm in front of the washing machine and dryer facility. The laundry tub is shown with a clearance of 1025mm. A person standing at either cannot avoid obstructing the path of travel of any other person moving in the common hallway, such as a resident with a bicycle who is otherwise prevented by the Plan of Management at [97(4)], from accessing the bicycle storage in the private open space via the passage from Rosella Lane.
A portion of this common hallway, in the immediate vicinity of the communal laundry, was measured at No 152 Crown Street to be in the order of 730mm in width. In my opinion, the usual and expected operation of a washing machine and dryer, and that of a laundry tub, are incompatible in a common hallway of such constrained width, which also functions as the path of travel, and presumably that of escape in case of emergencies.
Finally, in considering the heritage issues and streetscape constraints that are particular to Rosella Lane, I prefer and accept Ms Misra's evidence that the character of Rosella Lane is distinct from that of other lanes in the area, such as Palmer Lane. The layout of allotments in Palmer Lane is such that the terraces in Palmer Lane address that lane as a primary frontage, while properties to their rear are on separate lots, and front Palmer Street.
In the case of Rosella Lane, the allotments are arranged as singular lots extending from Crown Street to Rosella Lane. As such, Rosella Lane is clearly a rear frontage. That rear frontage has a high degree of consistency because of the number and contiguity of heritage items that share an arrangement of built form that drives the single storey character, not by accident or neglect as appears to be the argument of Mr O'Donnell and Mr Phillips, but as a function of the heritage significance identified in those items.
The bulk, massing and modulation, and the street frontage heights proposed in the terraces, in inconsistent with the low scale character of Rosella Lane. This character is likely to be retained, by virtue of the local heritage listing of the 'bakers dozen' to the east of the lane, and the properties at 128-136A Crown Street on the western side of the lane. In my opinion, the proposed form and external appearance of the proposed development will not improve the quality and amenity of the public domain, but stand in distinct contrast to it.
As I find the proposed development does not achieve a high standard of architectural design and detailing appropriate to the building type, nor improve the quality and amenity of the public domain by its form and external appearance, I conclude the proposed development fails to exhibit design excellence, pursuant to cl 6.21 (3) of the SLEP, and I determine the appeal should be dismissed.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development application No D/2021/1012 for demolition of existing structures, alterations and additions to existing boarding houses, and the construction of 3 new dwellings and associated works at 148-152 Crown Street, Darlinghurst, is refused. 3. All exhibits are returned, except for Exhibits B, D and 12. ………………….. T Horton Commissioner of the Court

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Mod Urban Pty Ltd v Council of the City of Sydney

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