Pititsa Pty Ltd v Council of the City of Sydney - [2018] NSWLEC 1007 - NSWLEC 2017 case summary — Zoe

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Pititsa Pty Ltd v Council of the City of Sydney

[2018] NSWLEC 1007

Land and Environment Court (NSW)|2017-10-11

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-10-11

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

This is an appeal brought by Pititsa Pty Ltd (the Applicant) against the decision of the Council of the City of Sydney (the Council) to refuse consent for a development at 79A Wells Street, Redfern (the Site).
The application sought consent for the demolition of existing structures on a site of some 82.14 sqm, and the erection of a five storey residential flat building comprising two, one bedroom apartments and one, three bedroom apartment, together with a roof terrace for the exclusive use of the 3 bedroom apartment below; a basement containing storage and plant; and a car park with associated services on the ground floor: Amended Statement of Facts and Contentions, Ex 1 at [2].
At its core, this case is about the form of a proposed building, and the suitability of the Site for the proposed building.

[2]

The Site and Surrounding Area

The Site is located on the southern side of Wells Street in close proximity to the intersection with Regent Street. Currently, the Site is used for car parking, with corrugated metal sheeting extending over bitumen paving, and a metal shed occupying the south-western corner. It has an irregular shape, with a primary street frontage of 4.64m. Its street frontage is a roller garage door.
Wells Street is a narrow street containing mainly double storey terraces and double storey corner commercial buildings facing north-south streets. To the east of the Site is a pair of two storey Victorian terrace houses. To the Site's west is a two - three storey commercial building with a frontage to Regent Street. Opposite the Site is a five storey residential apartment building with upper level setbacks. The experts have agreed that historically, the Site has been associated with the commercial use of the premises located at 101 Regent Street.

[3]

The Planning Framework

The key planning documents in this appeal are the Sydney Local Environmental Plan 2012 (Sydney LEP) and Sydney DCP.
The Site is zoned B2 - Local Centre Zone. A residential flat building is permitted in the zone with consent. The objectives of the zone are:

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 allow appropriate residential uses so as to support the vitality of local centres.

Clause 5.10 of the Sydney LEP is concerned with conservation of the environmental heritage of the City of Sydney. In particular, cl 5.10(4) mandates the consent authority, prior to granting consent in respect of a heritage conservation item or area, to consider the effect of the proposed development on the heritage significance of the item or area concerned.
The LEP mandates the maximum number of car parks which can be included in a development. The number of car parking spaces is not to exceed the maximum number set out in the Division (cl 7.3 Sydney LEP).
Clause 6.21 of the Sydney LEP requires development to demonstrate design excellence. In this case, the matters which are in dispute relate to the extent to which the development addresses heritage issues and streetscape constraints; the bulk, massing and modulation of the building; and the interfaces at ground level between the building and the public domain: Sydney LEP cl 6.21 (4)(d)(iii), (v) and (xii).
The recommended management of the Redfern Estate Heritage Conservation Area calls for a new development to respect the scale and form of significant developments and respect the building line of significant developments. It also recommends (at point 4) that FSR and height controls are to reflect the desired future character of the area, setting maximum FSR and height limits: Ex 3, Tab 25.
The Site is located in the Prince Alfred Park South locality under the Sydney DCP (DCP 2.13.18). The Principles pertinent to that locality include that: (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes; (h) Generally limit building heights to two or three storeys; (i) Permit higher buildings on major streets at the edges of the neighbourhood.
Section 3.2.2 of the DCP is concerned with the manner in which development addresses the street and public domain. Provision 1 states that buildings are to be designed to positively address the street.
Heritage conservation areas are dealt with at DCP section 3.9.6, and require the development to be compatible with the surrounding built from and urban pattern, responding sympathetically to factors including (1)(d): the type, siting, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings, and (e) the interface between the public domain and building alignments and property boundaries.
Section 3.9.7 calls for contributory buildings to be retained unless the consent authority determines that the replacement is justified in exceptional circumstances.
As far as garages are concerned, infill development is not to include garages and car access to the front elevation of the development where those are not characteristic of the area: 3.9.6(3).
The objective for Amenity under the Sydney DCP is to ensure that residential amenity is enhanced with landscaping, private and communal open space, sun access, ventilation and acoustic privacy: section 4.2.3. The desired amount of private open space and balconies is covered by section 4.2.3.7, while the provision regarding common open space - at least 25% of the total site area - appears at 4.2.3.8.
While it provides a storey control of six storeys on the Site and the sites fronting Regent Street, moving away from Regent Street (and along Wells Street) the Sydney DCP provides for a reduction in the number of storeys to four, and then to three and two throughout the heritage conservation area.
It is significant for this appeal that under the Sydney LEP, the maximum permissible FSR is 2.5:1. The FSR of the proposed development (following changes to the original proposal) is 2.4:1. The Site is subject to a height control of 18 metres, and the proposed development sits at 17.4 metres. The DCP has a height limit of six storeys (the development proposes five). Accordingly, it is uncontested that the proposal complies with the relevant numerical controls.

[4]

History of the Site and the Application

Efforts have been made to develop the Site over a period of years. In 1999, consent was granted for the erection of a three storey mixed use commercial and residential building, which was never commenced, and has now lapsed. In 2011, an application was lodged for the construction of a three storey commercial building. That application was refused due to insufficient information being provided in support.
This application was lodged with the Council in September 2015. The Council refused the application on 16 August 2016 for the following reasons: 1. Design excellence: the proposed development pays insufficient regard to the surrounding streetscape and results in a height out of character with the locality. It also results in an inappropriate interface, including a street facing garage at the ground level between the building and the public domain. The proposal fails to exhibit design excellence as required under cl 6.21 of the Sydney LEP. 2. Heritage: the form of the proposed development proposal will detract from the significance of the Redfern Estate Conservation Area and is inconsistent with the objectives identified in Cl 5.10 of the Sydney LEP. 3. Amenity: the proposal provides insufficient communal open space and deep soil planting. These deficiencies will detract from the amenity of the dwellings and are contrary to section 4.2.3 - Amenity of the Sydney DCP.
After the appeal was commenced, amended plans were prepared and leave was granted by the Court for them to be relied upon. The amended application was notified and generated one objection which raised concerns about impacts of privacy of the development on the five-storey property located across the road from the Site in Wells Street. A conciliation conference held in May 2017 was unable to resolve the matter, which subsequently proceeded to a hearing. Plans were further amended following the conciliation conference, including the introduction of a low height fence along the Wells Street boundary with the proposed car space now set back 1050 mm from the Site boundary. The front setback to the third and fourth floors has been increased to be 540mm. These proposals together resulted in a smaller FSR, being 2.4:1.
In addition to the grounds for refusal set out at [22] above, in its Amended Statement of Facts and Contentions [Ex 1] the Council relies upon the following contentions: 1. The proposed development has a poor relationship with the street (as a result of the car parking space). 2. The Site is not suitable for the proposed development - in addition to amenity matters raised in other contentions, the development will unreasonably limit the future development of the neighbouring properties. 3. The proposed parking arrangement will reduce pedestrian and cycling safety.

[9]

The Applicant's Position

The Applicant's experts support the provision of a parking space due to the existing condition of the Site (the proposal represents a significant improvement on this); the narrow street; and the presence of other examples of car access from the front elevation in the same conservation area. In addition, the proposed treatment of the garage door will ensure the appearance of the garage at ground level is not prominent or offensive. A residential use at this level would be undesirable for amenity reasons.
As part of its evidence, the Applicant provided a "Garage Study" (Ex C). That document comprised a map with markers identifying the location of accompanying photographs of 26 garages in the locality, which garages were located on a street frontage. The area the subject of the study was approximately bounded by Redfern, Regent, Cleveland and William Streets.
The Applicant also relied upon a previous development application involving a garage on the street: Ex F. That decision was relied upon by the Applicant as evidence of where the Council has found, in this same heritage conservation area, that garages or openings are "characteristic". The streetscape where this finding was made, says the Applicant, is far more intact and consistent than the streetscape in Wells Street.
The Council concedes that there are garages within the conservation area, but relies upon the definition of "characteristic" from The Macquarie Dictionary (3rd Edition), meaning "relating to, constituting or indicating the character or peculiar quality, typical, distinctive". The garages identified by the Applicant are not on Wells Street, which the Council says is the relevant character. While many garages may be oriented to Renwick Street, this is not typical of Wells Street. In this appeal, the garage takes up the whole of the façade. It is not correct to say that garages are typical of this are generally, or that a garage of this type which takes up the bulk of the façade is typical.
The Council has argued that the objective of the zone is to maximise public transport patronage and encourage walking and cycling. The Council says it would be entirely appropriate for there to be a development on the site which does not have a garage.
In response, the Applicant has said that the Sydney LEP contemplates the presence of garages, and cl 7.5 of the LEP talks about a maximum number of car parking spaces. The Applicant also submitted that the development complies with the control which promotes the maximisation of public transport. Of the three units to be contained within the development, only one is proposed to have a car space.

[10]

Finding

It was clear from the Site inspection that there are many examples of garages located within the front elevation of properties within the locality, including along Renwick Street and George Street. The images in Ex C show a variety of garages with frontages to the street, ranging from simple roller door garages built into fences to more ornate, high-end designed artistic doors. I accept that these garages are not identical to the current proposal, but there is no doubt as to their prevalence.
I prefer Mr Boutros' expert opinion (for the Applicant), based on the additional study he has undertaken and as evidenced through Ex C, that there are sufficient garages within the area to make their presence known and inform the character. Based on the number of garage doors demonstrated in Mr Boutros' study, many of which I viewed on the Site visit, I am satisfied that they can be said to be characteristic of the conservation area. I am fortified in my finding by the fact that the Council has, on a previous occasion, found that garages are characteristic of the area, notwithstanding that that case involved an application for alterations and additions, and the garage did not take up most of the frontage of the development.
In addition, I find that the proposed treatment of the garage, with glazed bi-fold doors behind palisade gates as illustrated in Ex D, results in an acceptable aesthetic outcome which is not out of context with the immediate area. I find that it is not prominent or offensive, and due to its treatment, is not comprised of a blank wall (which complaint from the Council referred to an earlier iteration of the design). From a streetscape perspective I concur with the Applicant that it represents a vast improvement on what is presently there. The proposal is a superior outcome, designed to respond to the context, including addressing Wells Street.
Mr Boutros expressed the view, which I prefer, that the palisade fence combined with the recessed nature of the bifold doors complement the rhythm of the terraces to the east.
True it is that the proposed design does not reflect a traditional terrace house, where the ground floor would comprise a verandah, low fence, door entry and window at the front. However, most of these elements are in fact present in the proposed design. In my view it is an acceptable response to the surrounding streetscape.
While the presence of a garage instead of a commercial or residential use will not provide safety through additional "eyes on the street", this is not of such moment as to result in refusal of the garage on the ground floor level. In any event, the development addresses the public domain, with the units above the ground floor level addressing the street directly and overlooking the street.
I also find that to the extent that it is relevant, the objective of the zone is met with respect to encouraging public transport patronage and encouraging walking and cycling, given that only one of three units will have a parking space. There was no evidence adduced which supported the contention that pedestrian and cyclist safety would be compromised. In addition, this proposal does not offend the amount of car parking specified in the LEP maximum car parking control.
For the reasons I have set out above, those contentions of the Council listed at [29] above are not made out.

[12]

The Council's Position

The Council's heritage expert, Mr Wang, says that the proposed five storey height is out of context and the upper level setbacks (of 540 mm) are insufficient. A five level building does not complement the scale and height of existing contributory buildings in the vicinity.
Mr Wang also considers that the sloped wall and the pop-up windows at the fifth storey add visual impact to the new building and are not appropriate [Ex 2 at [53]]. A setback of 3m (for two storeys above the parapet) to 4.5m (for three storeys above the parapet) would be more appropriate for the Site, noting that section 4.2.2.2 of the DCP establishes a minimum 3m upper level setback for residential development above residential development. Ex 2 at [60].
The total height of five storeys plus rooftop terrace significantly exceeds the scale and height of existing contributory buildings in the vicinity, making the new building notable from Wells Street and Renwick Street. The total height should be no more than four storeys, consistent with the maximum height on the eastern neighbouring sites. This height would considerably reduce the building's visual prominence and be able to provide a height transition from the low scale buildings on Wells and Renwick Streets to the buildings facing Regent Street: Ex 2 at [70].
Mr Wang's position is that the Site faces Wells Street, and its land size and pattern is similar to its eastern neighbours. and therefore it should have more regard to the neighbouring terraces and streetscape of Wells Street.
According to Mr Wang, an 18m height limit could not be met in this context, due in part to the existence of (considerably lower) neighbouring properties at 77 and 79 Wells Street, which are unlikely to be developed.
The Council's urban design expert opines that the proposed building is too high, with the height too close to the street and is thus a detracting building in the context of lower built form along the southern side of Wells Street. If there is a five storey development, the upper level setback is required to reduce the visual impact of the additional height.

[13]

The Applicant's Position

The Applicant's heritage expert relies upon the historic relationship between the Site and the building fronting Regent Street. Moreover, the nearest built heritage items are at some distance to the Site and will not be impacted by it. The heritage item in Wells Street (below the ground) will not be impacted by the proposal.
The Applicant's planner also relies upon the desired future character established by the suite of LEP and DCP controls, pointing to the proposal's compliance with numeric controls. Detailed controls were prepared in 2012, and the Site is not inconsistent with or affected by any of the maps setting these controls out. The base of the building is compatible with both adjoining buildings either side to the east and the west, achieved through the base building form along with the recessed upper levels. The combination of appropriate vertical and horizontal bay widths associated with the façade treatment ensure that the new building will sit comfortably in the existing and future streetscape: Ex 2 at [61] and [62].
The character of the area is very mixed, with single and two storey dwellings and four to five storey apartment buildings in Wells Street including a five storey development opposite the Site. This large building is the dominant element in the local context. The LEP Height of Buildings Map shows a 15 m height limit to the properties to the east along Wells Street, presumably intended to provide a transitional zone to the area to the east. In contrast with the Council's position, Mr Oultram says that the Site is clearly part of the building at 101 Regent Street that is currently over 12m high to its main parapet: Ex 2 at [80].
The proposed development has a two storey form to the street at the lower levels to provide a transition to the two storey houses to the east with balconies to the front in the manner of traditional verandas. According to the Applicant's heritage expert, greater setbacks than shown would produce little in terms of reducing the impact of the building in heritage terms, leading to a complication in the design and an unjustified reduction in the floor plate.
Restraint has been shown insofar as the proposed development is lower than the maximum height control and is 15.3 m from its ground to the height of the front ridge, and is in line with the 15 m height limit of the sites to the east.
The expert pointed to numerous examples of buildings in the City of Sydney with nil setbacks to the street at all levels which he opines have produced high quality insertions into conservation areas.

[14]

Findings

My starting point is that, consistent with the position held by the parties' experts, this Site is appropriate for infill development. The disagreement lies with the building form, and the suitability of the Site to accommodate that which is proposed.
There is no doubt that the Site has the benefit of generous planning controls, located as it is in proximity to Regent Street. According to Council's expert, the Site is the only site within the block surrounded by Regent, Redfern, Renwick and Wells Streets that has an 18m height control but does not have a Regent Street frontage: Ex 2 at [67].
The experts are agreed that the Site has historically been linked to 101 Regent Street, which is reflected in the height controls. The Site's 18m height limit effectively incorporates it with the buildings that face Regent Street.
While each of the parties has made various arguments and submissions with respect to the streetscape, I prefer the evidence of Mr Wang in this respect, and find that the development is required to give more consideration to its relationship with the eastern neighbouring buildings and the streetscape of Wells Street, rather than Regent Street, particularly 101 Regent Street. This is because the effect of the application is to change the historical relationship between the Site and 101 Regent Street, to a relationship with Wells Street. The relevant context is therefore Wells Street. Wells Street is fundamentally different in character from Regent Street. Through the design solutions employed by the Applicant, the development on the Site also seeks to take its cues from neighbouring properties in Wells Street.
While the development will not have an impact on the listed built heritage items located in Wells Street, the total height of 5 storeys plus rooftop terrace significantly exceeds the scale and height of existing contributory buildings in the vicinity, particularly the adjacent terrace houses. Notwithstanding that a six storey limit exists, the proposal in its context, at five storeys, dominates over the roofscape elements of the rooves and dormer windows of the adjacent terrace houses [see Ex 2, Fig CC01, p.12].
While the character of the area is mixed, and there are both single and two storey dwellings as well as a five storey development opposite the Site, I find that a five storey development would be out of scale with the neighbouring properties to the Site's east.
As far as setbacks are concerned, I accept Mr Oultram's evidence that greater setbacks than what is proposed - 540 mm on the third floor - would produce little in terms of reducing the impact of the building in heritage terms, leading to a complication in the design and a reduction in floor plate which is not justified in this small site: Ex 2 at [84]. While the Council has argued for a greater setback than that proposed by the Applicant, the bulk and scale of the development will be reduced through a lower height building. To require a greater setback would result in an unreasonable constraint on the Site's development, having regard to its inherent limitations.
For the reasons sated above I therefore decline to grant approval for a five storey development on the Site. However, it is my finding that the Site can accommodate a four storey development.

[23]

Further Discussion

Mr Staunton, counsel for the Applicant, strenuously argued that the controls are the lens through which the development is to be assessed, and they determine the acceptability of those impacts. He drew on the specific and careful consideration given by the Council to which heights are to apply to which properties. He also submitted that what was sought by the Applicant was not the maximum, but somewhat below the development potential of the Site. Moreover, notwithstanding the recommended management of the Redfern Estate Conservation Area [set out above at 12], after the preparation of that recommendation the Sydney LEP went on to impose controls which effectively uplifted the FSR and height from the controls which had previously applied under the former South Sydney DCP.
For its part, Ms Berglund for the Council urged the Court to conduct an assessment under the terms of s 79C of the Environmental Planning and Assessment Act in the normal course.
I have carefully weighed the Applicant's submission with respect to the development's compliance with the relevant planning controls on the one hand, and the concerns raised by the Council, particularly in the context of heritage and streetscape impacts, on the other. Consistent with the finding in Botany Bay Council v Premier Customs Services Pty Ltd [2009] NSWCA 226, in reaching my decision I have applied the Sydney LEP and had regard to the provisions of the Sydney DCP.
The Site's zoning is a matter of fact. According to that zoning and related development standards, the Site has the potential to be the location of a substantial development. However, notwithstanding the numerical planning controls which apply to it, other matters must be taken into account in deciding whether the proposal should be given approval, specifically those matters set out at s 79C.
While the historical relationship of the Site with 101 Regent Street might explain the height control, that does not mean that a future development will be able to achieve the 18 m height. Indeed, Mr Betros conceded that sometimes because of the conditions pertaining to a particular site, the maximum height in an LEP is not able to be achieved.
I am not satisfied that a development of five storeys is appropriate on the Site. This is in spite of the fact that the controls allow for a six storey development. I find that a development of that height would be out of character and represent an overdevelopment of the Site. The Site represents a transition from 101 Regent Street to the side of Wells Street containing two storey heritage buildings. I accept the Council's submission that as the adjacent buildings are contributory heritage items, any adjacent development must be sympathetic. In my view the five storey proposal is unsympathetic to the Wells Street streetscape.
I find that a five storey development, with its bulk and massing, is simply too much development for this Site in this area. The height and bulk give it a visual prominence which is not consistent with the heritage conservation area, nor is it consistent with the adjacent terrace buildings. A five storey development does not provide sufficient transition, notwithstanding the generous height controls applicable to the Site.
The building envelope allowed for by the controls is an aspiration, not an entitlement. There is no guarantee that a building will be permitted to fill the four corners of a building envelope. This application is a good example of why that is the case: notwithstanding what numerical controls may provide, the proposal must be assessed on its merits.
With respect to design excellence, I am satisfied that the proposed design, subject to the required amendments, meets the requirements of the Sydney LEP. In particular, I draw comfort from the proposed condition of consent (number 5) that a materials sample board detailing all proposed finishes must be submitted to the Council for approval prior to the issue of a construction certificate.
As far as the single objection is concerned - that the proposal will result in a loss of privacy for dwellings on the opposite side of the road - I accept the Council's assessment that the separation between the Site and the opposite property is adequate, and there are no unacceptable impacts.

[24]

Further Directions

In the course of the hearing, I invited the parties to express their views with respect to a development of four storeys in height, as opposed to one of five storeys, if I were to find that a five storey development would not be appropriate for the Site.
When expressly asked its view as to how it would prefer a four storey building to be configured, the Applicant's response was that it adhered to its primary submission, that as a fully compliant development, approval ought to be given to the development for which application has been made. If the five storeys were found to be unacceptable, then the two storey dwelling would become a single storey dwelling, and the car park on the ground floor would be retained. In other words, the building would still contain three units, but of a configuration which would fit within four levels in total, maintaining a garage on the ground floor.
In contrast, if approval were to be granted for a four storey building, the Council would prefer to see the garage removed, with four levels of residential building. The Council's position was that even if the garage were to be retained, a four storey outcome would be a much better outcome than the full five storey development the subject of the application.
For the reasons I have set out above I am satisfied that a garage at street level is an acceptable outcome for this development. Accordingly, I adopt the configuration preferred by the Applicant at [99] for a four storey development, and have decided to approve the granting of development consent on that basis.
The parties are to file settled, revised plans and conditions of consent reflecting the outcome of this determination. These plans are to be based upon the plans comprising Ex B, subject to the changes specified at [101]. The conditions of consent are to include the Applicant's solution contained within Ex D, comprising a fence of 1.2m, and garage doors comprising glazed bi-fold doors. The conditions are also to maintain the condition (number 19) that the proposed gymnasium is to be used as a "communal room".
The matter will be set down for mention on 24 January 2018. If, by that time, the parties have filed settled, revised plans and conditions of consent reflecting the outcome of my determination, I will make Orders in chambers and vacate the mention.