Moses & Anor v Council of the City of Sydney

Environmental Planning and Assessment Act 1979 South Sydney Development Control Plan 1997: Urban Design LEGISLATION CITED: South Sydney Local Environment Plan .

Moses & Anor v Council of the City of Sydney [2005] NSWLEC 436; CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373; .

DATES OF HEARING: 8 and 9 August, 12 September 2005

APPLICANTS Mr V Conomos, solicitor Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Commissioner: This is the second decision given in this appeal. The applicants seek to undertakere novations and refurbishment of premises at 1 Kellett Way, Kings Cross (the site), in order to permit their use as a night club accommodating up to 250 persons with the venue to operate as a restaurant only on Mondays and Tuesdays and as a night club on Wednesday, Thursday, Friday, Saturday and Sunday nights, on all nights trading until 3am with the night club trading on the nominated five nights until that hour of the morning. The site is located on the intersection of Kellett Way and Roslyn Street at Kings Cross.

2 On 9 August, 2005, I gave an interim decision [see Moses & Anor v Council of the City of Sydney [2005] NSWLEC 436] concerning the social impact issues which were raised by the council. Although I found that there were likely to be significant adverse impacts, I also held that the ameliorative measures which were proposed by the applicants to address those impacts had sufficient broader public benefits that the social impacts, on very fine balance, did not warrant refusal of the application.

3 Relevantly, I said: 45 Therefore, I have reached the conclusions today that: + there are significant adverse social impacts of the proposal; + on a very fine and marginal balance, they do not by themselves warrant refusal because of the countervailing public benefits accruing from the active security presence in and CCTV surveillance of elements of the nearby public domain; but + these impacts go extraordinarily close to doing so.

4 I granted the applicants an adjournment to permit them to prepare amendments to the plans which would have the effect of reducing the proposed glass enclosure over the courtyard from a two-storey structure to a one-storey one.

5 During the further hearing, an additional amendment was made to the revised plans to provide stepping in the masonry wall which would present to Kellet Way so that that wall would, in effect, generally follow head height along the street but with the proposed unstepped metal and glass structure above.

6 Three substantive issues remain in the proceedings.

7 Two of them relate to the glass enclosure of the courtyard, they being: - Whether it is acceptable, in planning terms, in the streetscape: and - Whether it has an unacceptable impact on the heritage building which forms part of the site.

8 The third matter concerns the provision of emergency fire egress from the building and obtaining the consent of the body corporate of a strata plan (of which the site forms part) to alterations to a gate which would permit a passageway to Kellet Street being used for emergency fire egress.

9 This third issue has been deferred as no owners consent from the body corporate of the strata plan is in evidence.

10 If the applicants were to have been successful on the planning and heritage issues, that matter would have required further resolution.

11 However, I am satisfied that, although there no heritage reasons to refuse the application, the presentation of the proposed metal and glass structure to the public space to the east at the corner of Roslyn Street and Ward Avenue and its presentation to Kellet Way and Roslyn Street is unacceptable.

12 Whilst this unacceptability might not, in itself, warrant refusal, I am satisfied that the combination of it and the adverse social impacts which would arise from the proposal are certainly not sufficiently offset by the public security benefits which would be obtained by approving it.

13 As a consequence, I have concluded that the application should be refused and the appeal dismissed.

14 The heritage issue might be described, in simple terms, as the proposition put by Mr Smith, giving heritage evidence on behalf of the council, that the enclosure of the courtyard would remove the open element adjacent to the heritage item and part of its surrounds so that the sense of understanding of the heritage item would be unacceptably compromised. It was his evidence that the courtyard associated with the item was an essential part of its context.

15 Mr Davies, giving heritage evidence for the applicants, disagreed primarily on the grounds that the enclosure of the courtyard would not have the effect that Mr Smith postulated.

16 The heritage structure is a two-storey building which presents a blank masonry end wall to Kellet Way and has had added, at its upper level, a verandah along its eastern side (facing the courtyard and the public open space). This verandah overhangs part of what would have been the courtyard.

17 Although there was no precise date able to be identified as to when this verandah was added, there was agreement that it was considerably later than the original construction of the heritage structure.

18 There was some dispute between these experts as to the extent to which the width of the present verandah should be permitted to be extended by a replacement structure or, indeed, whether any extension in width should be permitted at all. However, there was no suggestion by Mr Smith that the verandah should be removed and not replaced.

19 Indeed, whatever the first floor eastern structure would result after an approval, it was Mr Smith's evidence that the proposed cladding treatment to that structure on its Kellet Way face would be acceptable. The proposed cladding is copper sheeting in a weathered effect shown on the sheet of proposed finishes tendered in the proceedings. There is no doubt that, over time, such cladding will accrue a further patina of ageing as Mr Smith agreed would be the case.

20 When asked whether he considered that this significantly different treatment to the verandah element would constitute a significant discontinuity between the heritage structure and the courtyard, Mr Smith disagreed. I am unable to concur in this opinion.

21 The visual appearance of the present first floor eastern structure on the heritage item is not so alien in style and finish as to constitute a major discontinuity between the heritage structure and the courtyard to its east.

22 However, although it is a question of style, there is nothing in the present proposed façade treatment (which Mr Smith has considered acceptable) which would provide a bridge or link between the courtyard and the heritage item. 23 On the contrary, the copper finish to the verandah element will be quite distinctly different to that of the unbroken two-storey masonry wall of the heritage item facing Kellett Way. 24 I am, therefore, satisfied that the resulting discontinuity of the proposal would sufficiently sever the courtyard from the heritage item that the imposition of the glass and metal structure is rendered irrelevant in impact on the heritage structure.

25 However, the same conclusion of an irrelevant impact cannot be reached concerning the presentation of the glass and metal structure proposed to enclose the courtyard in a general streetscape sense - particularly having regard to the controls contained in the South Sydney Development Control Plan 1997: Urban Design (the DCP).

26 The DCP is the relevant planning instrument applying to the site, as the site is located in the area of the former South Sydney Council prior to its dissolution and absorption into the City of Sydney.

27 The relevant provisions of the DCP are found in Part E Section 2 at cl 2.5 Facade Treatment dealing with fences. It describes the aims of the fencing provisions of the DCP in the following terms: In addition, to attain a high quality urban streetscape there is a need to carefully consider the effect of fences and screen walls, depending on the street context. Fencing design and the material used have implications for streetscape, privacy and security. Council does not favour high front fencing. The intention is to achieve a safer more community spirited environment where people are not hidden behind fencing and not separated visually from the street. Privacy can be achieved through building design, detail and planting rather than high fencing. 28 The relevant DCP objective is: To ensure: * Building facades reinforce the character and continuity of the streetscape by recognizing contextual cues particularly in streetscapes of heritage significance.

29 The relevant performance criteria are set out in the following terms: Streetscape elements such as fences and walls, are designed as an integral part of the building to define the edge between the street and semipublic front spaces and respond to: * the character of the street; * the continuity of streetscape elements; * building setbacks; * the period of construction and individual character and scale of the building; * the heritage context; and * privacy and security issues.

30 The DCP then continues to set out the controls which are designed to give effect to these objectives and performance criteria. The control which is relevant reads: Front fences and walls are no more than 1.2m high if solid (forward of the building line). This height may be increased if the fence has openings which make it not less than 50% transparent.

31 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent.

32 From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

33 However, on the other hand, it is also clear that if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Environmental Planning and Assessment Act 1979.

34 In practical effect, the DCP provides that a solid wall to the street frontage is acceptable to a height of 1.2 m and that a higher front street wall structure will be permitted to a maximum of 1.5 m provided that the upper element of such structure is one which has openings though it capable of permitting observation into the space behind.

35 The site must be assessed in the context of the present wall which faces Kellett Way and which continues, at a slightly lower height, along the boundary of the site with the public open space to the east. The proposal will have the effect, as finally amended, of lowering the height of the masonry element presenting to Kellett Way. The stepping in the wall is a small positive when compared to the existing wall which has an un-stepped and higher eastern end.

36 However, the dominance proposed structure to be erected enclosing the courtyard and extending significantly above the height of the wall to a maximum above masonry height of 1.6 m along the eastern wall and along the eastern-most step in the masonry wall to Kellet Way is one which will necessarily be quite dominant and alien in its streetscape

37 In addition, the existing gates, which provide some breaking in the current wall, are to be replaced with masonry thus removing an element of transparency.

38 The whole masonry wall structure is to be covered with metal ribbed cladding.

39 The metal structure which will support the vertical glass panels and the horizontal metal grid pattern which will support the glass roofing panels over the courtyard will, although the glass is entirely clear and which, I accept, would be appropriately fire-rated and noise suppressing, nonetheless, be quite visually obvious to those who observe the structure - not merely in the immediate vicinity but also, as depicted in the applicants' photomontage, from the eastern side of Ward Avenue opposite the public open space.

40 In particular, the metal elements on the north-eastern corner (where the two masonry walls join) will provide a clear and obvious edge to the structure. The leading horizontal edge on either face of the glass enclosure will become increasingly dominant as the site is approached along Kellet Way from the west or from Roslyn Avenue to the east. Although not as intrusive to the monstrous degree as would have been the case if the proposed two-storey were to have been permitted to be erected, it will nonetheless still be significantly visually intrusive.

41 In this context, Ms Foster, a planner giving evidence on behalf of the council, suggested there would also be adverse visual impacts not merely of the supporting metal structure but also from what she regarded as the visually distorting effect of looking diagonally across the site through two panes of glass. Although there may have been some minor effect of this nature in the proposal were to have succeeded, I am not satisfied that this would have been of any significance.

42 My consideration of the height and presentation of this structure must be undertaken in the context of its immediate social setting. A number of the elements of the immediate setting provide some assistance to the applicants.

43 First, the setting is not a conventional suburban one and conventional suburban fences should not be expected. Indeed, it is my view that the nature of the locality is what has made the masonry wall presently erected on the site acceptable in its context.

44 The second element which is of assistance to the applicants is that not only is the site not at a conventional suburban residential location, it is on the margins of what the South Sydney Local Environment Plan acknowledges it is a transition zone between the more bohemian elements of Darlinghurst Road and the residential areas to the east of Ward Avenue.

45 That bohemian nature is one which was relevant in my assessment of the social impacts of the proposal and is also relevant to my consideration as to the degree to which the prescriptions of the DCP should be regarded as restricting future development of the site.

46 As noted earlier, the application proposes the filling in of the existing of gates which face Kellett Way and which otherwise provided a break in the masonry wall facing that street. That break in the masonry wall was an element, in my assessment, which made the otherwise dominant nature of that wall acceptable in the streetscape.

47 The filling in of that gap was not opposed by the council and, therefore, nor should it be regarded by me as a negative to the application. It is an element which, I am satisfied, is an appropriate degree of noncompliance of the DCP's controls as a result of the nature of the transitional zone within which the site is located and the activities which might reasonably be expected on the site.

48 However, the degree to which the transitional zoning and the activities which might be expected on the site should permit a relaxation of the otherwise quite strong prescriptions about fencing in the DCP do not, in my view, extend to a departure of the significant and dominant nature of the proposed glass and metal superstructure atop that wall - being a structure which is only required for noise amelioration purposes as a consequence of the hours of the activity proposed on the site.

49 I have therefore concluded that totality of departure from the DCP is too extreme to be justified by the nature of the location of the site and thus the appeal cannot succeed. The issues of emergency fire egress do not, therefore, require resolution.

50 Therefore the orders of the Court are: 1. The appeal is dismissed; 2. Development application DA/04/1711 for renovations and refurbishment of premises at Kellet Way, Kings Cross for the purposes of use as a night club is determined by the refusal of development consent; and 3. The exhibits are returned.

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