Ozzy States Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2017-12-21|Before: Ms J

Judgment

COMMISSIONER: This is an appeal under then section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by Inner West Council (the Council) for alterations and additions to an approved but as yet unconstructed mixed use development in Balmain.
The development site is 383 and 387-389 Darling Street and 2-4 North Street, Balmain (the site).
The approved development (Exhibit 5) was granted consent in August 2016 by way of an agreement under s34 of the Land and Environment Court Act 1979: Brown v Inner West Council [2016] NSWLEC 1371.
The approved development proposes the demolition of existing structures and the construction of a 3 storey mixed use development on the site, other than on 2 North Street. The mixed use development contains 14 proposed apartments, two ground floor commercial premises and a single level basement for 17 parking bays, motorcycle and bicycle parking, and storage. It is proposed to be built to each of the site's boundaries. The approved development also includes alterations and additions to an existing dwelling at 2 North Street, including a new first floor level.

The site and surrounds

The site is located on the northern side of Darling Street opposite the Balmain Court House and on the western side of North Street. It comprises five lots with frontages to both Darling Street (16.6m) and North Street (21m) with a combined area of 1,246m².
There are various heritage listed buildings in close proximity including the Balmain Court House and former Police Station, Town Hall and Fire Station as well as commercial premises at 363-377 Darling Street and the former Blacket residence at 393 Darling Street.
The site is delineated below in an aerial photo contained in the Council's Statement of Facts and Contentions (Exhibit A).
Neighbouring properties are a mixture of commercial, mixed use and residential development.

Planning controls

Under the provisions of the LEP, the portion of the site fronting Darling Street is zoned Local Centre B2 and the portion fronting North Street is zoned General Residential R1.
The objectives of the B2 zone are stated in the LEP to be as follows:

To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
To encourage employment opportunities in accessible locations.
To maximise public transport patronage and encourage walking and cycling.
To ensure that development is appropriately designed to minimise amenity impacts.
To allow appropriate residential uses to support the vitality of local centres.
To ensure that uses support the viability of local centres.
To provide a mixture of compatible land uses.
To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres.
To integrate suitable business, office, residential, retail and other development in accessible locations.

The objectives of the R1 zone are as follows:

To provide for the housing needs of the community.
To provide for a variety of housing types and densities.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To improve opportunities to work from home.
To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.
To provide landscaped areas for the use and enjoyment of existing and future residents.
To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.
To protect and enhance the amenity of existing and future residents and the neighbourhood.

The site has a maximum permissible FSR under the LEP of 1.1:1 for the portion zoned R1 and 0.7:1 for the B2 zoned portion;; the latter can increase to 1.5:1 if the terms of clause 4.4A are met. There are no applicable LEP height controls.
Consent for variations to the FSR standard can be granted subject to the provisions of clause 4.6: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (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. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (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, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) -.
A request to vary the FSR standard under clause 4.6 of the LEP was lodged as the application proposed to exceed the permissible FSR for the site.
The objectives of the FSR standard are specified under the LEP at clause 4.4(1): (a) to ensure that residential accommodation: (i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and (ii) provides a suitable balance between landscaped areas and the built form, and (iii) minimises the impact of the bulk and scale of buildings, (b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
The provisions of clause 4.4A also apply to the B2 zoned portion of the site and provide floor space incentives by way of an FSR 'bonus' for mixed use developments incorporating active street frontages. Sub-clause (3) states: (3) Despite clause 4.4, the maximum floor space ratio for a building on land to which this clause applies is 1.5:1 if the consent authority is satisfied that: (a) the building will have an active street frontage, and (b) the building comprises mixed use development, including residential accommodation, and (c) the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.
The site is located in a heritage conservation area (HCA). Existing buildings on the site are not listed as heritage items under the LEP. However, as indicated, the site is in the vicinity of or adjoins a number of heritage items in a heritage precinct referred to as the 'Balmain Civic Precinct'. This is so named because the precinct is dominated by significant civic buildings referred to in the DCP as 'the Civic Buildings'. These include the Balmain Fire Station immediately adjoining the site to the west and the Balmain Town Hall, Court House and Police Station opposite in Darling Street.
Relevant heritage provisions are found at clause 5.10 of the LEP: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Maps as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Leichhardt, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, … (e) erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation area… (3) … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) …
Under the DCP, the site is located in both the Darling Street Distinctive Neighbourhood (DSDN) and the Birchgrove Distinctive Neighbourhood (BDN), the latter applying to a larger area.
The boundary of the DSDN is defined by the rear of properties fronting onto Darling Street and comprises the length of the 'Darling Street High Street'. A description of the DSDN in the DCP includes the following: The architectural character and scale of the street is primarily a Victorian style high street which is mainly two storeys high. However, the sequence of slope, elevation, and alignment of the road results in changes of scale and character and land-use along its length. Generally, the residential portions of the street are made up of detached and semi-detached buildings, which are setback from the street with intervening trees. A variable mix of form, scale and materials are used on these buildings. The commercial sections generally have continuous street walls, are two and three storeys in scale, include parapet fronts with balconies, verandahs and awnings projecting into the street space. The sequence from west to east is as follows: a. Western end - Large two storey detached houses and terraces, with generous setbacks, but with a neighbourhood centre clustered around the Elliot Street junction. b. A crest past the civic group and beginning of the commercial centre: then a gentle fall to Loyalty Square. The Civic Group marks the main crest, with a cluster of towers, as the main landmark of the suburb. The Town Hall forms the western bookend to the town centre...
The DCP's objectives for the DSDN is to facilitate development that is consistent with the desired future character for the neighbourhood, that desired character to be achieved by 17 specified controls, relevantly including: C1 Preserve and enhance the existing streetscape with special consideration for the remaining Colonial and Victorian buildings. C2 Allow for contemporary redevelopment where it is complementary to the existing heritage streetscapes and character/scale of the neighbourhood. C4 The interface between Business zoned sites along Darling Street and adjacent Residential zoned land is to be carefully considered in light of issues relating to bulk, scale and residential amenity. In this regard the provisions of Part C4.5 - Interface Amenity within this Development Control Plan are to be considered in the assessment of development on business zoned land along the interface boundary between Residential and Business zoned land. C5 The maximum building wall height is 6m for residential sites and 7.2m for commercial sites except as follows: a. the maximum building wall height for the Balmain Village Precinct is to be 10m on the southern side and 7.2m on the northern side. C6 Due to the diversity of building scale along Darling Street, the maximum building wall heights listed above should also be determined on the basis of the following: a. the primary reference is the building scale in the immediate vicinity of the subject site, e.g. terrace houses, traditional Victorian shop top terraces and single storey dwellings i.e. they should be in keeping with their neighbours; b. the maximum building wall height in the commercial and eastern portion of the neighbourhood is generally 7m - 10m. C8 Rooftop additions higher than the building wall height, if permitted, are to be set back from the front of the building to preserve the traditional scale of development and streetscape. C9 New commercial development shall maintain a sympathetic connection with the 1800s/early 1900s commercial streetscape of Darling Street. Contemporary buildings should not mimic the traditional architecture; but retain complementary scale and materials. C12 Development adjacent to residentially zoned land is to be considered in light of Part C4.5 - Interface Amenity within this Development Control Plan. Such consideration is to apply only to the interface boundary and has the following objectives: a. to preserve residential amenity, and b.to ensure an appropriate transition in bulk and scale of development. C17 Development is to be consistent with any relevant Sub Area objective(s) and condition(s).
The site is also located in the Balmain Civic Precinct sub-area of the DSNP centred on Darling Street and linking the Rozelle and Balmain Village Centres. The sub-area is defined in the DCP in part as follows: Located between Llewellyn and Montague Streets is the Balmain Civic Precinct. This area includes the Town Hall, Courthouse, and Police Station. These buildings are constructed in the grand Victorian style with the scale and style denoting the authority of the Imperial Crown. This cluster of buildings is overseen by the clock tower attached to the Post Office. The civic buildings in this precinct are listed in the Town Plan as a combined heritage item, as is the mansion formerly inhabited by Edmund Blacket at 393 Darling Street…
Part C4.5 of the DCP contains controls to maintain interface amenity between residential and non-residential zones whilst Part 1.11 deals with parking controls. These include the requirement for Travel Plans (control C28) and the required parking provision for development (at C1.11.1).
The design of the proposed additional apartment is also subject to the provisions of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP65) and the Apartment Design Guide (ADG).

Site view and objector evidence

The appeal commenced onsite where the Court viewed the site and surrounds from which the Council considered the proposed additional level could potentially be viewed.
The inspection of the area was in the company of the parties as well as: the heritage experts, Mr Phillips for the applicant and Mr Moore for the Council; the traffic engineers, Mr Maynard for the applicant and Mr Ogg for the Council; and the planners, Mr Boston for the applicant and Mr Goodyer for the Council.
The Court also heard on-site from four residents of North and King Streets. All raised concerns particularly with the proposed new level to the approved development. Objectors were particularly concerned that they had participated in the s34 process on the approved development (D/2015/390) where there was a negotiated outcome that, whilst not a preferred outcome and still opposed by them, was accepted by the Council. That negotiated outcome reduced the height and scale of the development. Residents were concerned that the new application proposed similar height breaches to those previously rejected. They queried why such an option was being revisited.
The Council quoted from one of the written objections where a resident of North Street wrote: From the outset, I am against this application as it attempts to add bulk and scale to an already disproportionate development on a very narrow street. The key reason this development (D/2015/390) was placed before the Land and Environment Court for resolution was because of the bulk and scale as well as the flow on effects this has to amenities, emergency services, heritage and the local community. I am happy for the applicants that they reached an agreement with the Land and Environment Court and were given permission to proceed however to now request further bulk and scale to the development that is directly on North Street is both unfair and against the Court's original ruling.
Specific concerns of residents who spoke at the hearing were that the application represented an overdevelopment of the site next to shops and the heart of Balmain's heritage buildings which contained civic buildings of historic significance, with the proposal causing adverse visual impacts when viewed from the heritage precinct, and towering over the adjacent heritage listed Fire Station, therefore not enhancing the values of the area.
Concerns were also raised with the impact on the local traffic network and parking availability, including pedestrian safety in North Street, particularly when considered in conjunction with the 'Beijou' redevelopment underway in close proximity.
Finally, the objectors raised concerns with the amenity impacts on neighbours from the additional storey and roof garden, particularly in terms of privacy and overshadowing.

Built form and FSR considerations

The Council contended that the proposal would result in a building that was excessively bulky in a prominent location amidst an important heritage precinct containing the Civic Group of buildings. The proposal needed to, but did not, respond appropriately to its context or to the sensitivity of the site.
The proposal exceeds the FSR permitted by the LEP. Whilst the proposed FSR for the R1 portion complies, the proposed FSR for the B2 portion is 1.634:1. The Council claimed this exceeded the standard by some 63.4% if the development did not meet the requirements of cl 4.4A which allowed a bonus FSR of 1.5:1 for the B2 zoned portion; that is if the development did not meet the requirements at cl 4.4A(3) to provide a building compatible with the desired future character of the area. If it did, and the bonus FSR applied, a non-compliance would still exist but be reduced to 8.9%.
The Council did not consider the cl 4.6 written request to be well founded arguing that the development did not satisfy the objectives of the FSR standard at cl 4.4. This was because, in essence, the building was not compatible with the desired future character of the area in relation to its bulk, form, use and scale.
Of particular concern to the Council was that the development would have an imposing effect on the streetscape of Darling Street and would negate the contributory value of the retained shop facades arguing that the 3-4 storey eastern facade of the building (at a length of 34m) would be completely out of character with the local context, exacerbated by the ground floor level of the building being raised 2.4m above the footpath level in North Street. Furthermore, the western face of the building, although broken by the central open space, would present a dominant bulk and scale and alien materials in the visual curtilage of the heritage listed Fire Station.
There was also concern with the bulk and scale of the northern part of the building, with a 4 storey height, 24m width, and sheer wall with inadequate articulation, presenting a dominating presence to the existing and future lower density residential development in the R1 zone along North Street and beyond. This was seen as a disparity of scale.
The Council was critical that height poles had not been erected to show the full extent of the height and the impact it would have. This height was exacerbated by the bulk and scale of the addition which, along with the selection of materials, reflected a lack of appreciation of the qualities of the existing urban context and heritage character of the Balmain Civic Precinct. In this regard, all of the heritage listed buildings within the visual catchment of the site had painted rendered masonry walls, columns and other well-proportioned features, a dominance of solid to void, and interesting details. The exception was the brickwork above the awning of 381-383 Darling Street.
Overall therefore, the Council argued that the development was contrary to the provisions of cl 5.10 of the LEP as well as inconsistent with the DCP in terms of controls pertaining to the DSDN given the site's location amidst the Civic Group. In particular, the prominence of the landmark heritage buildings in this group would be severely diminished by the development given the front part of the development breached the 7.2m envelope control set by the DCP, exceeded the height of the adjacent parapet line and didn't provide the required transition of scale. Furthermore the two residential levels above the retained shopfronts was not consistent with the building typologies found in the DCP and did not sensitively respond to the highly significant heritage character of the precinct
In this regard, the Council argued that the height and scale of the building should be subservient to the heritage buildings in the heritage precinct in which it is located and recognise the importance of those buildings, such as the detailed roof elements that contribute to the skyline.
To the contrary, the Council argued, the proposal was not concealed from the street but would be visible from close and distant locations and the height and bulk of the building was inappropriate in the context of the surrounding iconic Civic Buildings which should remain taller and dominant. The proposed building did not match the height of adjoining buildings on Darling Street but was higher than them. The raising of the ground level above ground level contributed to this.
Reliance could not be had on the development of the nearby Beijou Theatre building (the Beijou building) at 2A Rowntree Street which predated planning policies and controls and would not now be permissible.
In response to the Council's contentions, the applicant firstly argued that the bonus FSR available under cl 4.4A(3) did apply as the Court could be satisfied that the building would continue to have an active street frontage to Darling Street, continue to be appropriately defined as a mixed use development, and continue to be consistent with the desired future character of the area in relation to bulk, form, uses and scale.
In this regard, the cl 4.6 request prepared by Mr Boston, and his evidence, acknowledged that the non-compliance was caused by the additional upper level unit but argued that excess FSR should be allowed for the following reasons: 1. The development is contextually responsive and consistent with the objectives of the FSR standards at cl 4.4 and 4.4A. The neighbourhood includes non-heritage listed buildings and the 4 storey Beijou building, which is opposite the site and was approved for a fourth storey in 2014 with an FSR of 2.86:1 (or 90.65% variation). The justification for that exceedance was that the development sat behind the parapet, did not result in unacceptable impacts including to the HCA, and was responsive to the built form of the building. 2. The development is consistent with the zone objectives. In particular, it will not give rise to any unacceptable privacy, view loss or overshadowing impacts with setbacks maintained to the nearest residences ensuring no adverse visual impacts. Therefore it met the zone objective of appropriately designing development to minimise amenity impacts. 3. The density and built form is complementary to and compatible with the style, orientation and pattern of surrounding buildings in accordance with the standard's objectives. The additional upper level apartment has been designed and located such that it will sit well beyond the existing retained parapet and accordingly will not be readily discernible when viewed from the southern footpath in Darling Street directly opposite the site. It will also not be visible from North Street. 4. Specifically, the new upper level apartment is setback 6m from the approved upper level façade and a further 3m from the existing façade. It will only be discernible above the roof of 379-381 Darling Street given the relatively undeveloped nature of these adjoining buildings and will therefore likely be obscured when they are redeveloped. It may be visible from the driveway of the Fire Station but could be set back a further 1m to ensure it is not visible from this location. 5. The development needs to be read in the context of what has been approved not just what exists. The building's footprint and ground level landscaping are unchanged. 6. The development also needs to be viewed in terms of the visual context of the larger Civic Buildings in the vicinity and of the Beijou building. The development's height, bulk, scale and massing are entirely consistent with the site's visual catchment in this regard with the excess floor space appropriately distributed across the site. 7. The Statement of Heritage Intent accompanying the application concluded that the size and location of the addition ensured that it will have no visual impact from the public domain and no impacts on the HCA nor on the heritage items in the vicinity. 8. There are therefore sufficient environmental planning grounds to justify the variation sought including the retention of the heritage façade and established built form context which enables the additional floor space without adverse streetscape, residential amenity or heritage consequences. It does not raise any matters of State or regional significance and it would be unreasonable and unnecessary to uphold the standard in the circumstances.
In summary, the applicant contended that the additional floor space would not unreasonably add to the bulk and scale of the approved building. What was proposed were minor additions to the approved development and internal changes which would not adversely affect the identified heritage significance of any nearby heritage item or the character of the surrounding HCA, being set back from Darling Street and concealed from that street. It did not affect the approved scale of the building and was respectful of the surrounding Civic Buildings.
Expert evidence on the built form outcome and FSR exceedance was provided to the Court by the town planners, firstly in their expert report (Exhibit D) and then in oral evidence.
Mr Goodyer argued that the currently approved development represents the maximum bulk and scale appropriate to the site. The site has a high level of sensitivity, being in an important heritage precinct, and any breach of the controls should only be supported if it has no adverse impact on the heritage values of the area.
Whilst Mr Goodyer accepted that the applicant had sited the additional storey to try and diminish views of it, he didn't accept this had been achieved. In his opinion, the new addition would be visible from both the public and private domain, including from locations in Darling and North Streets, and from upper levels of buildings on these streets, albeit the degree of visibility would depend on the viewer's location. He was also concerned that the additional storey would dominate the adjacent heritage listed Fire Station and compete with the heritage buildings opposite which were landmark buildings.
Given the site was on a ridge, Mr Goodyer argued it could even be visible from more distant locations. Therefore the FSR breach results in a building that has a greater bulk and scale within a sensitive location. It did not, in his opinion, reflect the desired future character sought for the area in the DCP or as required by the objectives of the standard.
He also argued that there were no site constraints that supported or required the extent of additional floor space proposed; in fact the site constraints suggest a lesser rather than a greater FSR, or at least compliance, was warranted.
Mr Boston largely relied on his arguments contained in the cl 4.6 request in terms of bulk, scale and compatibility. However, he also noted that the majority of the proposed building had already been approved and that some of the excess floor space had been relocated from lower levels to the upper level with more located in the B2 than the R1 zone. Ms Reid submitted this allowed for additional density to be supported in the area without adverse amenity impacts to neighbours.
Although not outlined in the cl 4.6 request, Mr Boston also argued that the cost of retaining the heritage facades was a further ground to support the additional floor space.

Building design

A separate contention raised by the Council was that the proposal had insufficient regard to the design principles of SEPP65 and the ADG. Specifically, that the proposed additional dwelling represented excessive density and had inadequate landscaping with the previously approved rooftop planting substantially reduced given the additional dwelling at the fourth storey. Further, the separation of 7.5m between balconies and kitchen windows did not comply with part 2F of the ADG, the use of glass louvres would reduce the amenity of two of the units, and no storage was provided for the new unit.
Mr Goodyer's concerns were that the additional rooftop unit resulted in the loss of communal open space. The approved development complied with the required communal open space provision but the application proposed to reduce this so that it would be deficient. In Mr Goodyer's view, there was no planning reason to justify this deficiency which would reduce the amenity for future residents.
Mr Goodyer was also concerned with the proposed reduction in the separation distance between windows and balconies from that approved for two of the units. This required using louvres to achieve necessary privacy which he considered a poor design outcome.
Mr Boston argued that, other than the proposed additional unit, the approved units, and their amenity, did not materially alter. In terms of the proposed unit, he argued that it would have 'exceptional levels of amenity'. He did accept there was a reduction in rooftop communal open space but considered an adequate area remained, which would achieve exceptional solar access.
Mr Boston also argued that deep soil planting areas remained unchanged, the communal open space on the roof ensured adequate privacy, the additional basement level had no adverse or unreasonable amenity impacts, and the car lift was an appropriate form of access to the lower basement level.

Heritage Impacts

The parties agreed that the Civic Group of buildings, and the heritage precinct in which they are located, are highly significant and iconic to the identity of Balmain.
As indicated, the Council's main concern with the application was the heritage impacts of the development in terms of bulk, scale, built form and materials being incompatible with the character of the HCA including the commercial building at 363-377 Darling Street, the house at 393 Darling Street and all of the Civic Buildings. It was claimed to be an intrusive element into the visual curtilage of the nearby heritage items.
The Council argued that the bulk and scale of the proposed development would compete with these rightly larger buildings and diminish their prominence. Specific concerns were with the parapet lines, verticality of the façade openings at upper levels, and appearance. It was also contended that the development would substantially add to the unsatisfactory incremental change that was eroding the character and significance of the HCA in a highly sensitive location. It was therefore contrary to the heritage provisions of the LEP that aim to identify, protect, conserve and enhance Leichardt's cultural heritage. Instead, it represented an unsympathetic alteration or addition, was incompatible with its setting, used inappropriate materials and did not protect and enhance views from the public domain.
Mr Moore raised concerns that the proposed development retreated from the efforts made in the approved development to reduce the visual bulk and scale of the building. He stated in the heritage Joint Report (Exhibit C) as follows: "Despite its variable setbacks the proposed addition will be seen from the surrounding precincts as a poorly integrated, ad-hoc upper floor, strangely unrelated to the building beneath it".
Mr Moore argued that the design of the addition did not enhance or improve the manner in which the approved development, which he also did not support, related to its heritage context. His concerns included with the proposed parapet and fenestration relative to the adjacent heritage listed Fire Station. He acknowledged that not all new development in the vicinity had supported the heritage qualities of the precinct but viewed the proposal as an example of the incremental, detracting development that was diminishing conservation areas.
Mr Moore considered the development to be an unsympathetic addition which would adversely impact the heritage precinct and therefore did not meet the conservation objectives of the LEP and DCP being inconsistent with the aims and objectives of the controls in those instruments. It did not deliver an acceptable heritage outcome for the site given the context. In Mr Moore's view, the approved design was such that it made any acceptable enlargement of it difficult to achieve on the basis of what he described as 'the already complex and unusual character of the upper building in the approved design'.
Mr Phillips advised in the Joint Report that he saw opportunities to improve the scheme before the Court having regard to Mr Moore's comments, particularly in the Darling Street elevation, including raising the parapet, changing the balustrading and improving the fenestration to be more in harmony with the Fire Station. The architect had prepared amendments to show these changes, attached to the expert's Joint Report (Exhibit C) and the applicant had agreed to these amendments.
Mr Phillips also considered that the bulk and scale of the proposed addition would, rightly, not compete with the larger Civic Buildings nor diminish their prominence. This was because the proposed addition was modest and set well back from the street therefore it would be difficult to see, or barely visible, from the street or from the Fire Station driveway.
In his opinion, the prominence of the iconic Civic Buildings across the street, which are largely extant with major tall elements and dominate the streetscape, could in no way be diminished by such a modest proposal. Therefore, it would have little impact on the heritage items in the vicinity or the HCA, particularly relative to the already approved development.
Mr Phillips also argued that Balmain is composed of a wide variety of buildings and there were few of its streetscapes that had not been compromised (by development). In his view, the proposal is minor and meets the objectives of conserving the heritage significance of the listed items and the HCA, including fabric, settings and views by being setback so as to minimise visual impact on the heritage significance of the items and the area. Further minor changes to materiality and detail could also be undertaken if required.
Ms Reid submitted that it would not be possible to see all of the upper level addition as it would largely be screened by the approved development, by other development or by existing trees. It would also not obscure any listed heritage item. Further, the LEP facilitated incremental change in the HCA otherwise the controls would preclude any new development.

Car parking

The application proposes the overall provision on-site of 22 parking spaces: 18 residential spaces, 2 commercial spaces and 2 residential visitor spaces.
Three issues were raised by the Council in response: firstly, that too much parking was provided necessitating a second basement level and contrary to Council policies to reduce car dependency and encourage the use of public transport; secondly, that there should be more parking allocated to commercial uses rather than residential uses; and thirdly, that the parking was serviced by a car lift.
The Council contended that the development is required to provide residential parking at a range of 5-12 spaces with an additional 2 visitor spaces, a maximum of 14 in total, whereas the proposed residential provision is 20 spaces. This necessitates a second basement level requiring the ground floor level to be raised by up to 2.4m above the footpath level of North Street increasing the bulk and scale of the building and resulting in a poor outcome for the North Street streetscape. The additional parking is not required by the additional unit proposed and one additional unit did not justify providing 5 additional parking spaces. Further, a limited amount of this parking was allocated to the commercial uses.
The car lift was not supported as there would be no vehicular access to and from the lower basement in the event of mechanical failure, it relied on vehicles reversing in and out of the lift, and details of the lift had not been provided.
The applicant argued that the DCP required parking provision for residential uses was between 10-20 spaces, which the application met. Further, the amount of parking provided is consistent with the 2011 ABS census findings on existing car ownership levels in the locality.
A Joint Report was prepared by the traffic engineers and planners (Exhibit B). In it, the experts agreed that the parking provision did indeed exceed the amount required by the DCP and that at least one further space should be allocated for the commercial, rather than the residential, uses.
However, they disagreed in the methodology for calculating what the minimum and maximum amount of parking should be and therefore what the quantum of the oversupply was. It varied between 1 and 3 spaces in excess of the maximum permitted by the DCP.
A somewhat convoluted explanation of how different parking numbers were generated was provided. Regardless of the extent of oversupply, the experts did not agree on whether any surplus parking should be provided.
The applicant had proposed a Travel Plan to encourage public transport use and alternative methods of travel in addition to using the parking provided. Mr Goodyer considered Travel Plans to be in addition to limiting parking not an alternative. In his view, limiting supply limited car dependence and use without requiring policing or monitoring. Providing surplus parking would undermine Council's adopted strategy of reducing car dependency and trip generation, and increasing public transport use. He argued there was no justification, such as poor public transport availability, for surplus parking.
Mr Goodyer was also concerned that the large bulk store area, not required to meet storage requirements, would also be used for parking and added to the bulk of the building. He noted the approved development complied with the DCP requirements for parking.
Mr Maynard's calculations indicated the parking provision only exceeded the DCP maximum by 1 space overall although he accepted that the amount allocated to residential use exceeded the DCP maximum by 3 spaces. He considered this excess to have a negligible impact on the local network.
Mr Maynard also argued that there should be an assumption that the development would be constructed and used in accordance with the consent in terms of the bulk store. He also noted that, whilst buses used Darling Street, the site was not in a key bus corridor or close to a train station.
Mr Boston believed the development should be able to 'future proof' against a range of possible commercial uses where demand for parking may be greater than typically allowed for by providing as much parking on-site as possible. Further, there were constraints on where on-site parking could be provided elsewhere in the area and there was limited on-street parking available.
However, the Council argued the excess parking was not proposed to support the commercial tenancies but instead was earmarked for the residential apartments. If approved, further allocation of the additional parking to the commercial aspects of the development should be required.
In terms of the car lift, the experts noted that the DCP permits mechanical parking devices in limited applications however, a DCP control (C37) states that car lifts will only be permitted where there is no viable alternative to accommodate additional off-street parking.
The Council's starting position was that there was no requirement for, rather opposition to, providing the additional off-street parking which exceeded the maximum provision supported by the DCP and resulted in a car lift being required. Irrespective, Mr Ogg considered that the additional parking proposed, if supported, could be accommodated with a ramp design, not a lift, albeit significant design changes would likely be required.
Mr Maynard was of the view that developers should be able to provide for more than the 'bare minimum' of off-street parking and the lift provided the most efficient manner to access the additional basement level given the narrow constraints of the site. He questioned the viability and desirability of providing a ramp instead. Nevertheless, he prepared a design with ramps as an alternative which he attached to the Joint Report (Exhibit B) to demonstrate that a ramped option was not an improved solution.
Mr Maynard also included within the Expert Report details of the car lift to be installed. The traffic experts agreed such a lift could operate satisfactorily within the design proposed should the application be approved, subject to conditions of consent addressing maintenance and management of its use.

Conditions of consent

The parties did not agree on the proposed conditions of any consent which were filed after the hearing was concluded. In particular, the Council argued that the applicant sought to delete or remove conditions that were not the subject of any discussion in the hearing including deleting a requirement to consolidate the lots, undertake site remediation or comply with standard conditions on demolition and payment of security bonds, prepare dilapidation reports for adjoining properties, and prepare traffic, site and waste management plans.
Other conditions proposed to be deleted were associated with the proposed awning, stormwater collection, services and road works, as well as standard conditions on street numbering and tree replacement.
However, disputes which arose during the hearing on conditions associated with the allocation of parking between residential and commercial uses and the value of contributions to be paid were resolved between the parties.

Status of the existing consent

The Council argued that the Court should review the appropriateness of the existing approved development in determining the proposed alteration of it sought in the application before the Court.
Reference was made to the decision in Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780. At paragraphs 8 and 51, Mr Bonanno submitted, the Chief Judge dealt with the issue of an applicant attempting to alter a consent, assuming the existing consent can not be revisited but only the alterations can be assessed, as follows: 8 The applicant contended that the relevant inquiry was limited to only the alterations and additions from the development the subject of the previous development consent. The matters under s 79C of the Environmental Planning and Assessment Act 1979 were only relevant insofar as they applied to these alterations and additions. 21 It is in this context that one comes to consider the Council's contentions in its Statement of Facts and Contentions. The Council's contentions look at the development that would result from carrying out the particular works, erecting the building and using the land in the ways that have been proposed in the development application. They evaluate that development against the relevant controls in the applicable local environmental plan and applicable development control plan, and more generally against planning criteria. It cannot be said that those matters are irrelevant in the sense that a consent authority, assessing the development application which proposes those particular works, buildings and uses, would be bound to ignore the matters.
Mr Bonanno submitted that the salient findings from Gordon & Valich were that attempts to amend the existing consent meant the Court should 'go back to the drawing board' to assess the whole development not just the alterations proposed in the application before the Court. Therefore the approved development should not be viewed, as it was by the applicant, as an entitlement which can be intensified through this application.
Ms Reid submitted that the paragraphs of Gordon & Valich needed to be considered in the context and circumstances of that matter which varied from this application. She argued that several consents can apply concurrently to the site and the existing consent remained valid. The appeal only related to the current application which could exist concurrently with the existing consent issued in 2015 (D/2015/390).
Ms Reid also argued that the application and consent D/2015/390 could be read together as an unconstructed building can be the subject of an approval for alterations and additions. Further, the application was accompanied by sufficient information to enable the Court to assess the impacts of the built form outcome arising from the alterations as distinct from what was already approved. Furthermore, the existing consent could be modified under the provisions of (then) s 80A(5) of the Act to be consistent with this application, by a condition of consent imposed on the application.
Whilst Ms Reid argued it was not necessary to revoke the consent for the already approved development, the applicant agreed to this by way of a condition of consent should the current application be approved.
The planning experts also agreed that the issue of two consents could be resolved by conditions of consent whereby one consent can be revoked if the other is activated. In this way, any inconsistencies between the consents can be resolved.
Ultimately, Mr Bonanno did not press his concern with the existence of two consents in terms of being a determinative matter. However, he did consider the circumstances to be a matter of public interest.

Findings

In determining this appeal, the key issue to first determine, as it is a pre-condition of granting consent, is whether the excess FSR sought is justified by the clause 4.6 request lodged and having regard to the provisions of cl 4.6.
The non-compliant FSR is to accommodate floor space comprising a new upper level of development beyond that already approved for the site.
In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston CJ outlines in essence that, where LEP standards are not met, consent can not be granted under clause 4.6 unless the Court is satisfied that the pre-conditions of granting a variation to the standard are met including that the proposed development will be consistent with the objectives of the zone and with the objectives of the standard in question. This necessitates considering whether the required written request under cl 4.6 adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to support the variation.
For the reasons that follow, I do not find that the lodged clause 4.6 request adequately demonstrates that there are sufficient environmental planning grounds to justify non-compliance with the FSR standard or that complying with the standard is unreasonable or unnecessary in the circumstances.
It was agreed that the site the subject of the application is located in one of the most important heritage precincts in Balmain in close proximity to a number of heritage items including the Civic Buildings.
The FSR breach results in a building that has a greater bulk and scale within a sensitive location than the controls allow. I am not convinced that this is justified in the circumstances. There are no apparent site constraints that support the extent of additional floor space proposed, in fact the site constraints suggest lesser rather than greater FSR, or at least compliance with the standard, is warranted. Mr Boston even accepted that the heritage context of the site requires a heightened level of sensitivity in terms of heritage impacts. Arguing how those impacts may be minimised for a new non-compliant upper level element to a building does not demonstrate, in my view, adequate consideration of such sensitivity or constitute adequate justification for the breach.
Retention of the heritage façade and established built form context is already achieved with the current consent. The cl 4.6 request did not raise the cost of retaining the facades as a ground for justifying the excess floor space albeit Mr Boston did in oral evidence. The site view suggested, and the cl 4.6 request indicates, that the additional new floor space leading to the excess of the FSR standard would be visible at least from the Fire Station site (a heritage listed site) and in some locations in Darling Street. Albeit it was not possible for either party to confirm to the Court the extent of that visibility, the applicant's experts nevertheless considered that the visual impacts would be minimal, reasonable, screened, further addressed, or removed with redevelopment of other sites.
In fact, much emphasis was placed by the applicant on the limited visibility of the additional floor space and the precedent of excess FSR at the Beijou building, rather than any specific basis for the quantum of additional floor space sought.
Whilst the approval of the Beijou building with excess FSR in 2014 is a relevant consideration in terms of precedent, there are differences which must be considered. The additional storey had previously been approved in 2009 and what has now been approved, according to the Council officer's report (Exhibit 6), is of a height and scale comparable to that approved in 2009. Details of the circumstances behind the 2009 approval of the additional storey (and therefore floor space) were not provided to the Court. However, the officer's report also indicates that what is proposed in the current approval was considered to be responsive to the existing built form of that site with a substantial amount of façades/contributory fabric retained. It also largely involved conversion of an already prominent existing building from predominantly commercial uses to predominantly dwellings and the cost of this conversion was part of the justification provided for the excess floor space sought. The application was also lodged, and therefore assessed, under the former LEP.
I accept that the same heritage listed Civic Buildings in close proximity to the site are also in close proximity to the Beijou building and, whilst that building does not directly front Darling Street, it is visible from these items and from the public domain. However, the bulk of the Beijou building presents to Rowntree and North Streets and, as indicated, the building is already visually prominent in the area. Therefore, as stated in the Council officer's report, the scale, built form and density (therefore the FSR excess) of the Beijou development was considered to be acceptable in its context.
In any event, each application of clause 4.6 must be assessed on the circumstances of that application and is not based on precedent, particularly as there was no suggestion that the Council had abandoned its FSR controls in the HCA.
Context and individual circumstances are relevant considerations with each request to vary standards and every application is required to be assessed on its merits. On the merits of the application the subject of this appeal, I do not consider the approval of excess FSR at the Beijou building to be sufficient grounds for the excess FSR sought in this instance as what is proposed remains inappropriate to its context nor is it sufficiently justified on its merits.
The proposed additional level sits as a full level of built form above the height of the adjoining heritage listed Fire Station whereas the roof of the currently approved development is below it and only the landscaped roof terrace exceeds this height. In this regard, I find that the proposed additional level proposed does not meet the objectives of clause 5.10 of the LEP to conserve the heritage significance of heritage items or the HCA in particular in terms of the setting of the adjoining heritage listed Fire Station.
I was also not presented with evidence which confirmed that the additional development sought on the site met all of the DCP controls for development in the Darling Street Distinctive Neighbourhood in which the site is located. Even if it could arguably preserve it was not demonstrated to enhance the existing streetscape to either adjoining streets (control C1) nor to complement the existing heritage streetscape (C2).
There was no evidence before me that demonstrated that the form of development with a building at the height and FSR proposed in the location proposed reflects the desired future character of the area. Nor that the proposal minimises the bulk and scale relative to a compliant development, or indeed the approved development.
The approved development was considered by the Council to not have adverse amenity impacts. Adding an additional floor, height, dwelling and floor space will not improve the amenity impacts for neighbours and could only conceivably reduce it in terms of additional bulk, scale and traffic, a case the neighbours' argued. However, I do accept that no specific adverse amenity impacts were contended by the Council.
I do however, agree with the Council, and the objecting neighbours', that what is already approved for the site through a conciliated agreement between the parties largely achieves the maximum amount of floor space supportable on the site given its sensitive heritage context and constraints. It facilitates additional development notwithstanding the heritage context in which the site is situated.
Furthermore, the approved development essentially achieves the maximum permissible FSR for both zones in which the proposed development is situated notwithstanding its sensitive location in an important heritage precinct. There is, in my view, simply no basis to add further built form by exceeding the FSR in the manner proposed when an objective of the FSR standard is to minimise, not increase, the impact of the bulk and scale of the building, even if the extent of that additional impact may not be substantial.
I also note that the proposal decreases the amount of communal open space available to future residents of the approved development and that can not be said to be a better outcome from the development, than is already achieved by what has been approved. There was also no indication in the cl 4.6 request of why there was a better outcome from development than compliance would achieve.
In short, there are insufficient environmental planning grounds to grant the variation or to conclude that compliance with the FSR standard is unreasonable or unnecessary in the circumstances of this application.
Whilst I accept that the proposed development meets the objectives of the zones in which it is located, I was not persuaded that the non-compliant FSR sought, resulting in an additional level of building on a site in a sensitive heritage location, accords with the desired future character of the area. Therefore I am not satisfied that that the proposed FSR exceedance is consistent with the objectives of the FSR standards. Accordingly, it can not be found to be in the public interest.
Therefore the clause 4.6 request to vary the FSR is not upheld and, on this basis, consent can not be granted.
It is therefore not necessary for me to deal with the issue of having two consents for developing the site, with the surplus parking and additional basement level proposed, nor with the conditions in dispute between the parties.

Orders

The orders of the Court are: 1. The appeal is dismissed 2. Development Application D/2017/277 for alterations and additions to an approved mixed used development at 383 and 387-389 Darling Street and 4 North Street, Balmain is refused. 3. The exhibits are returned except Exhibits A and 1.

Jenny Smithson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2018

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (3)