Norfolk (Redfern) Pty Ltd v Sydney City Council

Land and Environment Court (NSW)|2011-12-06

Mr C Ireland (Intervenor) Solicitors Mr V Conomos Conomos Legal (Applicant)

Ms M Flick Council of Sydney (Respondent)

M Page Page Partners (Intervenor) File Number(s): 10740 of 2011

Judgment 1Norfolk (Redfern) Pty Ltd has lodged an appeal against the deemed refusal by Sydney City Council of an application to review a decision to refuse consent to Development Application No. RD/2010/2095/A. That application seeks approval for alterations and additions to an existing commercial building and its conversion to a residential flat building, and the construction of a new residential infill building and basement carpark at 52-54 Pitt Street, Redfern. 2The owner of an adjoining property to the immediate south of the site, No. 56 Pitt Street, had been granted leave by the Court to intervene in the proceedings on the limited basis of matters relating to the proposed development's overshadowing and visual privacy (overlooking) impacts. 3The issues in the case are whether the development is appropriate in its context, has an appropriate level of amenity, is an appropriate design and scale, is consistent with the council's planning controls, contains an appropriate apartment mix and if it adversely affects the amenity of adjoining properties.

Background 4The original application proposed the adaptive reuse of an existing commercial building that fronts William Street for residential use containing 36 apartments (20 x 1 bedroom plus study and 16 x 1 bedroom units), the construction of an infill building to Pitt Street containing 10 apartments (8 x 1 bedroom and 2 x 2 bedroom units), a basement level car park for 31 cars and associated landscaping works. The council refused that application on 4 April 2010. The fourteen reasons for refusal are summarised as errors and inconsistencies in the plan which don't allow proper assessment; non-compliance with the design quality principles contained in State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65); failure to demonstrate the site is capable of being made suitable for residential use in accordance with State Environmental Planning Policy No. 55 - Remediation of Land (SEPP55); the proposal is contrary to the council's planning controls and heritage aims and the development is not in the public interest. 5On 28 June, 2011, Norfolk lodged a s82A application (review of determination) under the Environmental Planning and Assessment Act, 1979 (the EPAAct) and proposed an amended scheme in response to the reasons for the refusal. To address the inconsistencies in the plans, further amended plans were prepared and those plans (Revision G) are the plans before the Court which propose:

Conversion of the existing commercial building for residential use containing 34 apartments (17 x 1 bedroom plus study, 16 x 1 bedroom and 1 x 2 bedroom units); (The Court notes that the studies of some of the units are spaces rather than separate rooms)
Construction of an infill residential building to Pitt Street containing 6 apartments (3 x 2 bedroom plus study and 3 x 2 bedroom units);
Basement level carpark for 28 vehicles, communal bicycle cage and storage cages with vehicular access off Pitt Street;
Landscaping works. 6The council notified the original s82A application and received 89 submissions of objection however had not determined it at the time of the hearing.

The site and its context 7The site is a rectangular, dual-fronted allotment with an area of approximately 1,188sqm. Its frontage to Pitt Street is ~17m and ~17.65m to William Street and it has an average depth of 68.285m. 8The eastern portion of the site addressing Pitt Street is vacant and currently used for carparking associated with the use of a three-storey, former warehouse building with basement erected to the William Street boundary. That building is built to both side boundaries, has been converted to commercial use and is identified as a contributory building within the Redfern Estate Conservation Area under South Sydney Local Environmental Plan 1998 (SSLEP) and its carpark as a detracting element. 9Development in the vicinity of the site in Pitt Street is primarily two and three storey residential terrace housing with some newer infill residential developments and includes a number of listed heritage items. Those items in the vicinity of the site include three groups of terraces to the immediate north and south of the site, Nos. 46-50, 56-60 and 62-64 Pitt Street and a two storey weatherboard terrace opposite the site. 10William Street, a narrow street, is characterised by single and two storey residential terraces, those opposite the site also listed heritage items with a contemporary residential flat building located on its corner with Stirling Street.

The proposal 11The works proposed to be carried out to the existing building involve the retention of the existing facades and parapets, the demolition of all internal floors and roof and the construction of new floors and roofing to increase the number of floors within the building to comprise the basement and five residential levels above. 12The basement carpark would be accessed by a driveway off Pitt Street adjacent to the northern boundary of the site. It would run below the proposed infill building and ramp down to the level of the current basement of the existing building. The whole of the site with the exception of three areas retained for deep soil planting would be excavated/used as the basement. The deepsoil areas would be provided to the Pitt Street frontage of the site, a small area midway along the current carpark and adjacent to the northern boundary and a larger area towards the western wall of the existing building and adjacent to the southern boundary. 13New openings would be introduced to the eastern and western elevations of the existing building and balconies attached to its eastern façade. 'Winter gardens' or balconies enclosed by operable glass louvres, are proposed within the western elevation of the building to be used as private open space for the adjacent units that front William Street. 14A light well would be introduced in the northern, centre of the building to provide light and ventilation to the proposed units. That space would be used at ground level as private terrace and courtyard spaces for the lower level units and would incorporate north facing balconies to the upper units with the existing wall retained to the proposed second floor level and levels 3-5 open beyond that space. An elongated garbage storeroom and fire escape passage would be constructed at the western end of the building with access to William Street. 15The proposed infill building would be erected on an alignment of 4.4m to Pitt Street and the area forward of the building line used to provide ramped access to the main entry foyer which extends approximately 500mm into that setback, stair access to each of the ground floor units with the remainder landscaped. That building contains three storeys over the basement storage area and its upper floor is setback further and incorporated into the roofspace with dormer windows providing light and ventilation to the front rooms. 16All pedestrian access to the site is through this entry foyer with ramps connecting the two buildings through a landscaped central courtyard. Each building is serviced by one lift that connects all levels including the basement carpark.

The issues 17Of the seven contentions filed in the Statement of Facts and Contentions by the Council, contentions 1 (Errors and Inconsistencies) and 6 (Contamination) are not pressed as the council is now satisfied with the additional details the applicant has provided. 18The remaining contentions are heritage; the amenity of the William Street building; built form, scale and density; apartment mix and the public interest. 19From a heritage perspective, the council contends that the Pitt Street infill building is of a form and architectural design that does not enhance and complement the existing urban character, that the proposed changes to the William Street building are not compatible with or sympathetic to the existing fabric and character and will result in a negative impact on the Redfern Estate Conservation Area. In particular, it contends that the development fails to meet the heritage provisions contained within its planning instruments. 20The council contends that the proposed built form of the William Street building will result in poor amenity for future occupants and surrounding residential development. It says the disjunction between the floor levels and the window openings and the creation of new openings to facilitate the additional floors will create an unacceptable level of change to a contributory building and will result in a poor presentation of the William Street streetscape. It maintains that the applicant has failed to demonstrate that the proposed built form and density is able to achieve the required ceiling hight, cross ventilation and light access minimums governing the site, particularly those contained in SEPP65 and the council's planning controls. 21The third contention related to the built form, scale and density, which the council says, fails to respond to the context of the site or its constraints. It contends the Pitt Street infill building does not enhance and complement the existing urban character whilst the William Street building proposes a floor space ratio and density of units that cannot be accommodated by the building with the proposed floor space and number of units resulting in poor residential amenity and a degradation of the contributory status of the William Street building. Again, failure to comply with SEPP65 objectives and the council's planning controls are raised. 22The council considers the proposed apartment mix to be inappropriate as it fails to provide for a diversity of apartment types which is required to ensure a range of housing choices are available to suit different household requirements now and into the future so as to ensure an equitable level of access to new housing by different cultural and socio-economic groups as envisaged in SEPP65 and the council's planning controls. 23The council concludes that in view of these contentions, the proposal is not in the public interest as it is contrary to the provisions of relevant planning instruments, development controls plans and in consideration of public submissions. 24The council did not raise in its contentions the impact of the proposal on the solar access and visual privacy of the adjoining property to the south, No 56 Pitt Street and accordingly, the owner of that property, Ms Bolinger, sought and was granted leave by the Court to intervene in the proceedings on those issues only. It is her view that the amenity of her property will be adversely impacted if the development is approved because of the loss of solar access and the overlooking of her dwelling and its private open space.

The planning controls 25The site is zoned 2(b) Residential (Medium Density) under SSLEP. The proposal is permissible with consent in that zone and would also be permitted in the proposed R1 General Residential Zone under the Draft Sydney Local Environmental Plan 2011 (DSLEP2011) which has been publicly exhibited. Draft Sydney Development Control Plan 2010 (DSDCP2010) provides detailed controls to facilitate the implementation of that draft plan. 26The South Sydney DCP 1997: Urban Design (SSDCP1997) imposes a maximum height of 6 metres and maximum floor space ratio (FSR) of 1:1 of the site and that would be increased to 12m and 1.25:1 respectively if DSLEP is made. From the evidence provided, these controls are site specific and take into account the existing scale of the building. 27SSDCP1997 contains other provisions relevant to the application as does the Central Sydney Development Control Plan 1996 (CSDCP1996) and the City of Sydney Heritage DCP 2006 (CSHDCP2006). 28SEPP55 and SEPP65 are both relevant state planning polices that apply to the proposal and the Residential Flat Design Code (RFDC) provides additional detail and guidance for applying the design quality principles outlined in SEPP65.

The evidence 29The Court undertook a site view at the commencement of the hearing including a walk around the locality but did not inspect the interior of the William Street building. Evidence was heard from a number of local residents who objected to the proposal. A summary of the issues raised is the size and scale of the proposal; non-compliance with the council's planning controls; increase in density will adversely impact on the amenity of the area in terms of noise, traffic and infrastructure and these impacts will be 24/7; concerned excavation will damage buildings and infrastructure; overlooking/loss of privacy and safety.

Residents' evidence 30The Court, in the company of the parties and their experts inspected the homes of objectors. Those properties were Nos. 46 and 56 Pitt Street (intervenor's property) and Nos. 48 and 67 William Street. All residents had lodged objections with the council. The issues raised by each are summarised below.

No. 46 Pitt St 31This resident spoke of the history and heritage significance of the site and was concerned that the change of use of the building would lose the historic industrial character of that building and the diversity in the heritage area. He was also concerned that parking provided would be inadequate and increase the demand for limited on-street parking, that the scale, density of the proposal was excessive and would adversely impact on the adjoining heritage items.

No. 56 Pitt St 32Ms Bolinger, the Intervenor, says the development is not appropriate in terms of its density, bulk and scale and will result in overshadowing and unreasonable impacts on the privacy now enjoyed thereby decreasing the liveability of her home, a listed heritage item, the site of the first Redfern Town Hall and former home of three mayors. She says that the context of No. 56 as an end terrace would be lost and her heritage garden, that contains a 100 year old planting, would be prejudiced by lack of sun thereby decreasing the heritage significance of the property.

No. 48 William St 33The objector spoke of his concerns regarding potential over-viewing of his upper floor bedroom, the increased noise from residential use and garbage collection in a narrow street where the noise already reverberates, the visual impacts of the development including the construction of new openings, visibility of slabs etc, and possibility of subsidence.

No. 67 William Street 34The owner was concerned about the increased density, the safety of children who use the streets to play, competition for parking, excavation works impacting building and infrastructure, garbage collection, overlooking and privacy impacts.

Expert evidence 35Expert evidence was heard from: Area For the Applicant For the Council Heritage Mr D Logan Mr A Smith Urban Design Mr R Dickson Ms L Hancock Town Planning Ms L Brennan Mr M Solomon and Mr A Duggan provided town planning evidence on behalf of Ms Bolinger.

Heritage 36The heritage experts agree that the existing carpark is a detracting element in the conservation area and, from a heritage viewpoint, an infill building is desirable, particularly as a building stood on that frontage for many years. They say that a two storey plus attic building is acceptable and the ridge and street wall heights of the proposal are appropriate as is the location of the driveway as it reflects the set back from the north boundary of the original building however Mr Smith says the driveway should be flat well within the interior of the site but Mr Logan finds it acceptable to grade down below the building with a pair of timber doors introduced close to the front of the building to avoid any 'chasm' effect. 37They do not agree on the appropriate alignment for the building, Mr Smith says it should be informed by the well-documented footprint of the original house on the site and should align with the existing heritage items at Nos. 46-50 Pitt Street as this was the original relationship between the subject site and the two adjacent sites. Mr Logan says that as the proposed building is intended to be a contemporary yet respectful infill, rather than a reconstruction of the former dwelling, there is no need to build it to the original footprint or setback, rather, it is reasonable that the setback mediate between the setback of the terraces on either side as is usual in heritage conservation areas. 38Mr Smith considers that the design quality of the proposal is not of a sufficiently high standard within the streetscape context of the conservation area of this part of Pitt St. Mr Logan considers the design strikes a reasonable balance between being contemporary and seeking to respect the character of surrounding development however acknowledged that detailing could be resolved at the next stage of development to address many of the concerns raised by Mr Smith. Mr Smith says that there are too many areas that require change, the balance of the elevation, driveway design, roof form, double height loggia in particular, as well as the alignment, which mean the application does not satisfy the council's heritage controls contained within SSLEP, SSDCP1997 and CSHDCP2006 and conditions cannot address those requirements. 39In relation to the William St building, the experts agree that the key contributory value is as evidence of its former industrial use, that the eastern elevation is less intact than that of the west, that the entire roof structure is of relatively recent construction which, with the exception of the lift over run element, is likely to match the envelope of the original roof. They also agree that the change of use from the commercial to residential use is not, in itself, a negative heritage impact and that the introduction of the light well does not have a substantial visual impact when viewed form the public domain however, Mr Smith believes the works damage the building more than necessary and the lightwell should be designed to maximise retention of early fabric and ensure stability of the retained masonry structure. 40Mr Smith considers that it is preferable to keep the floors in their existing locations regardless of whether they are retained or replaced as this will allow retention of the existing fenestration pattern and reduce structural risk. Mr Logan believes that the new floor levels are acceptable as they would not detract from the understanding of the building and hence its contributory value to the conservation area. Further discussion was held between the experts during the hearing in relation to structural engineering details and it was agreed that, subject to resolution of wall thicknesses, these details would provide a workable system for stabilising the retained façades during construction and occupation of the building. 41The experts have opposing views with regard to the degree of change to the fenestration to the western elevation (to William St) that would be acceptable from a heritage viewpoint. Mr Smith believes that the window masonry openings are largely original, that the northwest corner of the warehouse forms a visually prominent east termination to Short Street and contributes to the heritage significance of the heritage conservation area. Despite the loss of the original timber joinery (which could be re-constructed or reinterpreted), he says the masonry openings remain characteristic of warehouse construction and demonstrate a characteristic solid-to-void ratio and the proposed openings are irreversible and confuse interpretation of the original. 42Mr Logan considers that the proposed new openings are placed in a way that respects the existing window configuration and retains its interpretation potential with the new half-window openings detailed in a way that retains their interpretation as new elements. He says that the William St elevation is only partly visible in views down Short Street and the façade and window configuration only fully visible from within William Street but at quite oblique angles making it difficult to read the patterns and concludes that this, and the eclectic nature of the surrounding streetscapes would mean that the changes would not be obvious to most passers-by and that the building would still read as a former warehouse and retain its contributory value. 43Further plans which detailed the alignment of the proposed louvres to be fitted to the openings were developed and considered by the experts who agree improves the reading of the punched masonry openings and reveals however Mr Smith says that any new fenestration should align with the position of the original windows as determined from site evidence. 44Mr Smith also considers that, despite the unsympathetic changes to the window lintels of the eastern elevation, the original fenestration of the warehouse can still be interpreted, that the new penetrations remove too much early masonry fabric and together with the proposed projecting balconies, results in a design that completely disrupts any ability to interpret this elevation as a former masonry warehouse and also fails to acknowledge the very symmetrical nature of the existing elevation. 45Mr Logan considers that the existing eastern elevation is extensively altered from its original character, that it may not be the original fenestration pattern and, that as it is agreed that the elevation will no longer be visible from the street if the Pitt St building is constructed, the proposed changes would not have an impact on the streetscape. Nevertheless, he says the proposal retains legibility of the scale and gabled character of the elevation as it would be viewed from the new enclosed courtyard area and would remain recognisable as a former warehouse wall and its contributory value would remain. 46Mr Smith believes the proposed floor slabs passing uncharacteristically through the surviving masonry openings will have an unacceptable visual impact when seen from the key Short Street view but also from William St in the immediate vicinity of the site and that the proposed clear glass louvres will allow the edges and soffits of the slabs to be clearly visible and whilst not shown, balustrades will be necessary and add to the clutter and confusion of the existing simple warehouse elevation with the effect being even more pronounced at night. He concludes this would provide an unacceptable and irreversible change to the existing contributory elevation. 47Mr Logan acknowledges that two of the new floors would most likely be visible behind the glass louvres at certain times of the day but considers that the constrained sightlines from Short St and within William St would not be an adverse visual impact and not detract from the understanding of the building as a former warehouse or affect its contributory value to the conservation area.

Urban Design and town planning 48These experts filed separate reports and participated in a joint conference resulting in a joint report that is Exhibit 5 (excluding Mr Duggan who has prepared an individual report and joint report in association with Ms Brennan). The issues raised on behalf of the intervenor are dealt with separately. 49All experts agree that a residential infill building is appropriate on Pitt Street, that the scale, roof pitch, front setback, ridge and street wall height of the proposal are appropriate, the provision of separate entries to the ground floor apartments from the street is positive however, the architectural design of the front door, particularly to unit P2, could be developed to provide a clearer threshold between private outdoor space and the living area. 50It is also agreed that the adaptive re-use of the William St building is appropriate, that the range of sizes of the one-bedroom units is acceptable, that introducing a level of apartments within the existing roof line is acceptable and that the design provides flexibility for future amalgamation of apartments to increase the unit mix, however, Mr Solomon says that this is only possible if the units to be consolidated were contained within one strata lot. 51Mr Solomon and Mr Dickson agree that the appropriate guideline for solar access is two hours of direct sunlight to living rooms and private open spaces between 9am and 3pm in midwinter as required by the rule of thumb contained within the RFDC for dense urban areas. The Court notes that the council's control contained in SSDCP1997 requires all living areas and 50% of the private open space to receive solar access however the RFDC only requires 70% of the number of units in the development to achieve the standard. 52Mr Solomon and Ms Hancock consider that issues relating to solar access, natural cross ventilation, visual impact, apartment planning and layout, and visual and acoustic privacy, derive from over-development of the site, in particular from the additional floors and resulting number of apartments and conclude that the FSR is excessive. Ms Brennan and Mr Solomon calculated and agreed that the FSR of the William St building, including the basement storage areas is 2.04:1 and that the Pitt St building is at least 0.5:1 so the total FSR is a minimum of 2.54:1 thereby exceeding the maximum 1:1 control contained in SSDCP1997 and the 1.25:1 proposed in DSLEP2011. Ms Brennan and Mr Dickson, whilst accepting the calculations, disagree and say the development provides acceptable amenity and that the FSR is appropriate. 53There is no agreement between the experts on whether the development would meet the solar access requirements. Mr Solomon contends that each building needs to independently achieve 70% solar access to comply with the control which is contained in the rule of thumb on p85 of the RFDC and, to meet the requirements of clause 5.1 of SSDCP 1997, each living room and private open space needs to receive 2 hours of direct solar access between 9am and 3pm in mid-winter. He says that in the case of the living rooms of each unit located along William Street, this is not achieved, as the living rooms do not receive the required sunlight. 54Mr Dickson says that the winter gardens of those units receive 3 hours of solar access which he considers to be a superior solution for winter solar access and amenity and cites examples where they have been used in the council area. 55All experts agree that 9 of the units in the William Street building do not achieve the 2 hour minimum and depending on whether the winter gardens are considered living space or not, a further 11 may not comply. That is because the applicant relies on the winter gardens meeting the criteria of a living room. The council says that these spaces are not living area but are balcony areas which are capable of being closed by the glass louvres which are to be installed within the existing window spaces and the additional openings to be constructed in the William St façade. It says that the RFDC requires at least 70% of apartments in a development receive a minimum of two hours direct sunlight to living rooms and private open spaces. If the council is correct, 20 of the proposed 34 units within that building would not receive the required direct sunlight to the living areas of those units. 56The experts have also considered the requirements for units to be naturally/cross ventilated as required by SSDCP1997 and the RFDC. Mr Dickson says that with adaptive re-use of buildings, there are more constraints on the ability to naturally cross-ventilate and therefore considers the proposed ventilation risers to be installed within some of the William St units to be suitable and an innovative way of resolving ventilation issues. Ms Hancock and Mr Solomon believe that ventilation risers should not be equated with natural cross ventilation for the purpose of achieving the 60% rule of thumb in the RFDC on the basis that they are a supplementary system. 57It is agreed that all of the units in the Pitt St building meet the solar access and ventilation requirements. A series of tables has been prepared on behalf of the applicant which calculates the percentages of units that receive the required sunlight and are naturally cross-ventilated. That table includes the details of the proposal as detailed in the Revision G plans which are before the Court and provides two alternate scenarios, alternative A combining units 5 and 6 of the William St building to form one unit and Alternative B involving units 5/6, 13/14, 21/22 and 29/30 as dual key units as one strata lot and converting units 8/9/10, 16/17/19 and 24/25/26 into 2 units. The purpose of the alternatives is to address apartment mix and other amenity concerns raised by the council. The table provides the following results: Solar access (inc w gardens) Without Revision G plans 31/40 units = 77.5% 20 units = 50% Alternative A 31/39 units = 79% 20 units = 51.28% Alternative B 29/27 units = 78% 18 units = 48.65% Cross ventilation (Inc chimneys) Without Revision G plans 32/40 units = 77.5% 24/40 units = 60% Alternative A 32/29 units = 79% 23/39 units = 59% Alternative B 32/37 units = 78% 21/37 units = 56.7% 58Mr Solomon and Ms Brennan disagree that the apartment mix proposed is suitable. SSDCP1997, CSDCP1996 and DSDCP2010 all contain social mix requirements for new developments. The aim of the requirements is to ensure a range of housing opportunities are provided in developments to maximise housing choice and maintain the cultural and socio-economic diversity in the local population ensuring there are quality and affordable housing options. In Table 2 to his expert report, Mr Solomon provides an apartment mix compliance table which compares the three controls. It is agreed that the proportion of one bedroom units proposed (82.5%) exceeds the controls and the number of two bedroom units (17.5%) is less than any required. All call for the provision of 3 bedroom units and none are proposed. 59Ms Brennan bases her view of the likely future trend towards smaller households and the related need for one-bedroom units whereas Mr Solomon says that there is a need to examine the existing and desired future character of the immediate neighbourhood and that it is an areas for families. Notwithstanding this disagreement, all experts agree that there is scope to explore amalgamation of some apartments and Ms Brennan has developed Alternative B as described above which would provide 53% one bedroom units, 9% dual key (= three x two bedroom units) and 38% two bedroom units. 60Further changes were agreed to overcome the length of communal corridors involving the relocation of unit entry points and the dual key apartments would further improve that situation. 61There is no agreement on the impact of change to the western elevation. Mr Dickson considers that the introduction of new openings represents no more than a 10% change to the solid:void ratio of the whole façade, that the character of the façade will not change significantly and that the limited visibility from the street of the building further reduces the impact. Ms Hancock considers that the introduction of new openings will substantially change the proportions of the facade and the perception of the solid:void ratio and that in a narrow street where the building dominates the outlook from houses opposite and for the pedestrian, the impact will be both significant and negative. They agree that the area of the west façade is approximately 270sqm, that the existing area of voids is ~75sqm and the proposed void area is ~94sqm which equates to an increase of ~24sqm. The experts interpret these figures differently; Mr Dickson prefers a 7% change over the whole façade whereas Ms Hancock prefers a 24% increase in void area. 62Mr Solomon says that the openings change the scale of the building so that it may appear to be 5 storeys. Ms Hancock says the whole building is a composition, the roof, and walls are critical and the fact that it is 3 storeys gives it its character so the alterations affect that character. Mr Dickson disagrees and says the building will still appear as 3 storeys. 63Mr Solomon and Ms Hancock consider that the new floor slabs interrupting existing openings and the balconies associated with them, will appear intrusive from both outside and inside the building and say the placement of windows on the first and second storeys is poorly related to sightlines from those balconies. Mr Dickson disagrees on the basis that the new slabs will be set back behind the louvres and will not dominate, notes that this approach has been used to good effect in a number of contributory and heritage buildings in Sydney and that the fact that the floor is visible is a good outcome. 64Mr Solomon and Ms Hancock consider that the extension of the eastern end of the building creates overshadowing and privacy issues, as it brings the building into greater proximity to No. 56 Pitt St. Ms Hancock says that given the already excessive bulk and scale of the building, there is no reason to extend it further and her preference is to see the eastern façade maintained to ensure symmetry. This would require all balconies to be internal and she had prepared a sketch that showed how this could occur. Mr Dickson says the balconies can be distinguished from the west and that the proposed treatment adds a different pattern of light and shade and that whilst it will read as an addition, is appropriate however says that it may be possible to amend the design to allay some of the council's concerns, accepting the sketch would address the issue however argued that it would not be necessary to internalise the northern balcony. 65Ms Brennan and Mr Duggan provided evidence in relation to the impacts of the proposal on the intervenor's property, No. 56 Pitt Street with regard to solar access and visual privacy. They agree that the three applicable openings to the central section of the house associated with its kitchen and dining room are the primary windows in dispute, that there are two areas of ground level outdoor open space, one adjacent and to the north of those rooms and the second, to the rear of the dwelling with a swimming pool and active landscaped areas associated with the ground floor family/informal living area. They agree that the former space is largely overshadowed by the existing boundary fence and that the amount of direct solar access to that courtyard is largely unchanged wit the exception of a thin strip of morning sun between 9-10.30am. They also agree that the maintenance of solar access to the windows of the sitting room windows (front) is not required under the provisions of cl5.1 of SSDCP1997 because these windows are on a side boundary and separated by the existing passageway. 66Ms Brennan is of the opinion that two of the three openings to the kitchen/dining area maintain in excess of two hours solar access in accordance with the DCP control with openings referred to as D1 and W2 maintaining 2.5 and 3 hours respectively so will comply with the control and therefore there is no need for S1 to maintain its solar access due to its location. Mr Duggan says the control has two limbs, the first concerned with the principal living area windows and the second with private open space and that both must be met and because the private open space areas are already constrained by the existing William St building and boundary fence, there is a need to protect and maintain solar access to the living area windows. He contends that full compliance with the control is not sufficient in the context of the constrained nature of solar access to both open space areas; the overshadowing caused by a development which currently (and proposes to further) substantially exceed FSR controls; the size of the openings are small and only part receive sunlight and that the current sunlight available to the formal living/sitting room will be totally removed. 67These experts agree that the removal of the balconies to units W10, W18 and W26 would assist in removing privacy impacts to the upper level balcony and courtyard at No. 56 and that this could be achieved by internalisation of the balconies within the existing building envelope or the conversion of W10 and W9 into a two bedroom apartment utilising the northern most balcony.

Conclusion and findings 68Having regard to the evidence provided and the relevant planning instruments and supporting controls, it is apparent that the philosophy to retain the existing warehouse building and construct an infill building to Pitt Street is appropriate however, the issues before the Court are whether the design proposed achieves the aims, objectives, design principles and outcomes envisaged by those controls without adversely affecting the amenity of residents within and adjacent to the site and the heritage conservation area within which the site is located. 69The existing heritage items within the vicinity of the site, and particularly those in Pitt St, are well maintained, of similar scale and, whilst erected on varying alignments, present a consistent streetscape. It is important that the proposal should fit that streetscape and in this regard, I find that the proposed alignment and siting of the infill building does not and I agree with Mr Smith that the alignment should take its contextual cues from the streetscape and the history of the property which would require any building to be constructed on the same alignment as the heritage items to the immediate north of the site. It is agreed that further detailed changes to the façade of the building would be required and, for any future proposal, the plans must have regard to the impact of the building on the heritage item to the south, No. 56 Pitt Street and ensure that it receives solar access in accordance with the controls contained within SSDCP1997. 70I find, in relation to the matters raised by the intervenor, that the development meets the quantitative controls contained within SSDCP1997 however, as the impact is compromised because many of the other relevant controls are exceeded a more careful design would be required. Without changes to omit balconies as demonstrated in the plans, Exhibit F, the privacy impacts to No. 56 are not addressed. Despite these impacts, I do not consider the objections raised by the intervenor alone, to be determinative. 71Clause 10 of SSLEP sets a precondition to the power to determine the application by the grant of consent. This requires the consent authority to take into consideration the objectives of the zone and form an opinion that the development is consistent with those zone objectives. Having regard to the evidence, I am not satisfied that the proposal is consistent with those zone objectives which are contained in clause 12, in particular, it would not enhance the amenity of the area (a) and is not in character with the surrounding built environment and detracts from the amenity enjoyed by nearby residents and the quality of the environment (c) because of its siting, design, bulk and density. Accordingly, consent cannot be granted to the application. 72Similar preconditions are contained in clause 22 of SSLEP whereby a consent authority cannot consent to the carrying out of development within a heritage conservation area unless it is of the opinion that the proposal is consistent with the aims and objectives set out in that clause. In this regard, I prefer the evidence of Mr Smith and find that the proposal does not conserve the environmental heritage of the land, or ensure that the development is sympathetic to and does not detract from the heritage conservation area and its setting or the architectural styles which define the character of that area. I also agree that the adaptation of the existing non-residential building is not compatible or sympathetic with the fabric and character of the building. For those reasons, I find that the proposal does not meet the heritage aims of cl 22 of SSLEP, particularly (a), (e), (f) (g) and (j) and therefore, consent cannot be granted to the application. 73Further controls are contained within SSDCP1997 and it is apparent from the evidence provided that the application fails to meet the façade treatment controls contained in cl 2.5 as it doesn't achieve a high level of compatibility with the built form of the conservation area, and the siting, design, articulation, detailing are not appropriate, nor does the infill building recognise contextual cues in the streetscape. 74The proposal fails to meet the objectives for warehouse buildings contained within cl14.6.1 of CSDCP and the provisions in cl14.6.2 particularly those which state major changes to the scale and form of warehouses and industrial buildings are not permitted where existing buildings already exceed current floor space and height controls and the additional floor space would compromise the heritage significance of the existing building or surrounding area;.... floor levels are to be maintained.....internal subdivision and the layout of new units within larger industrial buildings are to respect the existing pattern of windows and openings. 75The heritage significance of the existing building is not just about its size and bulk, it is also how it is read from the public domain. The consequence of change is significant, the scale of openings and the introduction of glass louvres/additional floors are agreed to all be visible from that domain, the proposed louvre treatment doesn't differentiate between new and old. I do not accept the view that because visibility of those changes is limited is a reason to allow inappropriate change to the external fabric. 76I do not agree with Mr Solomon that the rules of thumb in the RFDC apply to each building. The proposal is for an integrated development and, by necessity, must involve two very different built forms however, these are connected and therefore must be assessed as a whole. 77I agree that the placement of windows, particularly first and second floors is poorly related to sightlines and the floor to ceiling height of ground floor (The Court also notes that the winter garden to the western, ground floor units is also some 600mm higher than the floor level of that unit, being reached by four steps and therefore, the line of sight from within the unit is also restricted). These are a consequence of the introduction of the additional floor within that building, an unsatisfactory aspect of the proposal. The detrimental amenity impacts of this are demonstrated by the inconsistencies with the council's planning controls, SEPP65 and the RFDC. 78There is no shading provided for west facing windows as required by both SSDCP (cl 5.1) and CSDCP1996 (cl6.1.5). To satisfy these sustainability requirements in the proposed design, the potential for heritage conflicts arise. There has been no attempt to balance the sustainability and heritage principles. 79The winter gardens may be an appropriate solution in some circumstances however, those proposed are all west facing, have no shade devices and to do so has the potential to have adverse heritage consequences. The operation of louvres, shared between floors, also has potential conflicts with regard to access/acoustic issues, particularly between first and second floors and affects the amenity of those units, contrary to the design principles contained in SEPP65. Winter gardens may be suitable the reliance on these spaces to ensure compliance with the RFDC and DCP controls is another consequence of the additional floorspace proposed within the building. I have regard to the decision of Moore SC in Lateral Corporation Pty Limited v City of Sydney Council [2010] NSWLEC 1224 however, do not consider that the circumstances of the case are the same. In this case, there are too many unsatisfactory design aspects to allow reliance on wintergardens in such a high proportion of units. Mr Dickson says that wintergardens are appropriate to address excessive wind exposure, adverse inequality and acoustic environments along main roads however none of those circumstances are relevant in this case, the site is within a quiet location, fronting a narrow lane and is west facing. 80I am satisfied that the proposed method of cross-ventilation to the single aspect units could work, however, consider that the reliance on such a system for the provision of ventilation to so many of the units (40%) is excessive and the result of the overdevelopment of the existing building. 81The number of units that fail to meet the dual aspect, cross ventilation and solar access controls is due to excessive density, particularly the additional floor level and the high FSR proposed. The majority of those units that are single aspect also receive poorer or no solar access so this compounds the undesirability of the project. The current building is already much larger than what is in the locality and whilst I agree that the additional floors do not add to its bulk, the infill building provides for additional built form and density and there is a need to balance that additional floor space with what is proposed across the site and ensure that an appropriate level of amenity is achieved. For those reasons, I am not satisfied that the proposal delivers the necessary internal amenity. 82The additional balconies proposed to be attached to the eastern façade of the existing building are not considered to be appropriate and also demonstrate the need to reduce the FSR of that building. Other changes that increase voids to provide better cross-ventilation and solar access should also be considered in any future design. 83I agree with Ms Hancock that the development does not satisfy the SEPP65 objective of optimising amenity but it is not the role of the Court to redesign the development, what must be determined is whether the design is acceptable. As contended by Ms Hancock, the design does not meet those design principles, in particular, 1: Context, 3: Built form, 4: Density, 5: resource, energy and water efficiency, 7: Amenity, and 9 Social dimensions and housing affordability. 84The dual key option suggested to address the unit mix is not considered an acceptable solution as to do so would still require the installation of individual kitchens and bathrooms which, I consider, would add to the cost and therefore affordability and not guarantee occupation as one tenancy. The option does not provide for any 3 bedroom units so families would not be catered for. Whilst I agree that 1991 census data is unlikely to reflect current demographics, the objectives of the control are to encourage a variety of housing choice, not sameness. No compelling evidence on what would be the right mix has been provided to the Court however, it is clear that more variety would be required to achieve the DFC and SEPP 65 design principle 9. 85In view of the above considerations, I find that there are too many exceedances beyond the current planning controls, and that those non-compliances are not reasonable in the circumstances of the case. In particular, the proposal is not consistent with the aims and objectives of the zone and the heritage considerations contained in SSLEP and for those reasons consent cannot be granted 86I concur with the evidence of Mr Solomon that the development has been designed to maximise density at the expense of environmental considerations such as overshadowing, solar access, streetscape, natural ventilation, internal amenity and internal spatial quality and fails to appropriately consider the contributory status of the William St building and the existing and desired character of the HCA.

Orders 87The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. RD/2010/2095A that proposed alterations and additions to an existing commercial building and its conversion to a residential flat building, and the construction of a new residential infill building and basement carpark at 52-54 Pitt Street, Redfern is refused consent. (3)The exhibits, other than Exhibits A, F, G and 1 are returned. Sue Morris Commissioner of the Court

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