Porta v Sydney City Council

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Zhang v Canterbury City Council [2001] NSWCA 167

APPLICANT Ms S. Hill, solicitor of Susan Hill & Associates Lawyers Pty Ltd LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Hawkes, solicitor of Sydney City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11336 of 2008 Betty Della Porta v Sydney City Council

JUDGMENT 1 This is an appeal under section 96(6) of the Environmental Planning and Assessment Act, against the City of Sydney Council's refusal of an application to modify a development consent.

2 By way of background, the council granted approval for alterations and additions to the existing dwelling at No. 3 Bellevue Street, Surry Hills. The subject building is within a terrace row that is one of four in the row. The dwelling has pedestrian rear access to Albion Way via a shared easement.

3 The council at the time of determining the development application under a section 82A review granted consent to the alterations and additions which have the effect of providing for an extension to the rear at the first floor level and an addition to the building in an extension of the rear for what is known as the third level or second level of the building. The first floor being the ground floor.

4 There has been dispute or discussion today as to whether the proposed is a roof extension or whether it is an additional storey. It can be seen that it projects from the rear and is below the ridge line of the terrace by some 200 mm. 5 The council in its deliberations on the section 82A review provided two conditions to the original development application and the condition for the setting back of 500 mm of the upper storey addition was to provide separation to the adjoining property. The other condition related to the size of a rear balcony/terrace and the applicant is not pursuing the extension to the terrace.

6 The only condition that is in dispute today is the 500 mm setback from the southern boundary of the subject site where it adjoins the roof of the adjoining dwelling in the row.

7 The applicant concludes that the only reason that the condition is likely to be imposed, is because of its non-compliance with section 8.2.4 of the City Heritage DCP. However, in the case the applicant states that the existing roof form is not visible from any public vantage points and that setting back the roof form from the side boundary will result in no benefit for conservation area.

8 It is noted that in the Council officers section 96 report "irrespective of the rear roof extension it is difficult to view from the public area with a small section of the southern roof form visible from Bellevue Lane at the rear parts of the rear roof forms of the neighbouring terraces to the south are also visible from Bellevue Lane." Council noted that "it is understood that the required setback of the rear roof extension from the southern boundary is required as to not set a precedent for the neighbouring visible terrace roofs. It is considered that eliminating the required side setback to No. 3 would set a precedent for no setback for the terraces to the south thereby reducing the contribution of the row of terraces to the conservation area which they are located."

9 In terms of the planning controls the subject site is located in the mixed use zone. That is Zone No. 10 of the South Sydney LEP. The LEP has a number of heritage conservation provisions and the protection of heritage items. It is noted that there is a heritage item within the vicinity of the subject site however this is not raised as an issue by the council. There are the standard heritage provisions in the LEP and in this regard I am satisfied the proposed development does not impact on the heritage item.

10 The development control plan Urban Design for South Sydney provides for guidelines in terms of attic development and alterations and addition to heritage buildings. This states that: rear alterations visible from a major vantage point or public vantage point shall respect the integrity of the building form and sympathetic to the dominant architectural features of the period of the building and or surrounding buildings. The objectives include: "to allow roof space within the main roof of the dwelling is to be utilised before additional alterations and additions at the rear and to achieve sympathetic development and maintain the essential fabric of existing terrace dwellings . 11 It is noted that the performance criteria relating to the main roof of the existing dwelling shall remain intact and the rear extensions contained within the existing roof plane.

12 The more recent DCP is the one of the Sydney City Heritage Development Control Plan 2006 in force as from January 2007. It is noted that this plan provides for a philosophical approach to establish a framework for the assessment of applications and the heritage planning aims to ensure that the significant elements of the past are appropriately managed and respected by new development. Heritage Conservation does not preclude change but rather responds to different constraints and opportunities. The philosophical approach of the DCP refers to the Burra Charter and the DCP is based on the underlying principles that o change should be based on the understanding of heritage significance and o the level of change should respect the heritage significance of the item, building site, streetscape and or area. 13 The intention of this DCP is "to ensure the decisions about change are made with due regard to heritage significance and that opportunities to improve the understanding appreciation of this significance are taken." The DCP does not contain a map to show contributory; neutral; or detracting heritage buildings within the conservation area. The subject site is within a conservation area. The term of contributory item referred to in the DCP is they make a significant contribution to the character of heritage conservation areas and heritage streetscapes. 14 Section 6 of the DCP refers to additions and the objectives include: i. minimise the impact on heritage significance of the existing building, ii. heritage conservation area and or heritage streetscape iii. minimise the impact on the setting of the building iv. respect the scale of existing buildings v. respect the former massing vi. maintain the uniformity of significant coherent front and rear elevations where the building forms part of a group row vii. allow design flexibility for extensions and additions to the rear, including pavilion additions, that do not affect highly intact heritage items. 15 Additional storeys are referred to in 6.7 and this states that "upper floor additions to the rear that retain the main form of a building and do not exceed the main roof ridge height are generally more acceptable than changes that alter the height, scale or form of the original building." 16 The DCP requires chimneys and chimney detailing to be retained even where fireplaces are no longer working. The proposal seeks to retain the external fireplace and on inspection it could be seen that the fireplace is no longer functioning and the council does not require its reinstatement after having the opportunity of the inspection this morning.

17 The DCP contains provisions for rear roof extensions and states that "rear roof extensions need to be designed to take into consideration impacts on the buildings heritage significance particularly where it is part of a pair or intact row. This is particularly important where the rear elevation is expressed to an open public space such as a reserve, square or major street. In the case of buildings greater that 5m in width multiple traditional dormer windows may be a more appropriate solution than a single rear roof extension.

Roof extensions to the rear are to be: a) set back a minimum of 500mm from side walls b) set down a minimum of 200mm below the ridgeline c) set back a minimum of 200mm from the rear wall.

4. Rear roof extensions are not to be more than 4m in width. 2 and 3 are left out 5. Rear roof extensions are not to interrupt repetitive roof patterns, particularly on pairs, rows and groups of buildings." 18 The Court heard from Mrs Ruth Shmuely on behalf of her son who owns the adjoining dwelling in the terrace row. She expressed concern about the outlook to the north towards the city and the height of the proposed rear extension. It was pointed out that the proposal for the additional room at the upper level had been approved by the Council and the application before the Court was to allow the addition to extend to the common boundary rather than an off-set of 500mm. As such the proposed modification would not impact on the objectors property.

19 Expert evidence was given to the Court on behalf of the Council by Mr Wang, a heritage planner and Ms Elek, a planner with the city council. For the applicant, evidence was given by Mr Longergan, a heritage architect and Ms Harras, a town planner.

20 Mr Wang was of the opinion that the 500mm setback required by councils condition is necessary and deletion of this condition will have an unacceptable heritage impact on the conservation area. He is of the opinion that without a side setback it will set a negative precedent in the terrace row and make cumulative impact to the conservation area some of which may be sighted from the rear lane or other public domains.

21 Ms Harras, for the applicant is of the opinion that "Even if the addition were visible from some private vantage points and north side setback in this case results in a better visual outcome than the proposed 500mm setback. The required setback on one side only proposed roof addition is already approved to be built to the northern side boundary results in a lopsided roof addition which if able to be viewed from any vantage point may have more of a negative impact to the architectural integrity of the building and any benefits to be gained by revealing a narrow strip of existing roof to one side only.

The proposal is therefore consistent with heritage item (f) as all elements and architectural styles that are visible from and contribute towards the distinctive streetscape and character of the conservation area remain unaltered under the proposal..

The proposal does nothing to affect the uniformity of the building within the row of dwellings as viewed from the street or any public vantage point. and the proposal therefore complies with the provisions of 4.2(5)." 22 Mr Wang states that "being invisible to pedestrians on streets or laneways should not compromise the reason to contravene heritage controls. It is true that the current heritage DCP has more controls relating to facades facing streets and facades highly visible from public domains and allows design flexibility for extensions and additions to the rear. ...Actually the roof scape of an area can be clearly monitored from the air by current wide spread mapping tools, such as the google maps."

Assessment and findings 23 In my assessment having regard to the planning controls and the evidence to the Court I have determined that there is no reason to refuse the section 96 modification application.

24 While not shown on the heritage map as a contributory item or a heritage item none the less the dwelling does contribute to the heritage conservation area in a positive way when viewed from the streetscape. However, in my assessment a 500mm separation is not required in the circumstances of this case.

25 I am satisfied that the rear extension has been satisfactorily designed to provide amenity and space within a rear room addition at the upper level without undermining or adversely affecting the heritage conservation area. From the site inspection it could be seen today that the rear extension will be barely visible or observed from the public domain and I reject Mr Wang's evidence and I consider google earth is not an appropriate way to assess this development application. The 500m setback would be most difficult to observe even if this was the test.

26 I have made the development control plan a focus of my assessment and I am satisfied that on a holistic reading of the document that the heritage of the area is conserved by the proposed addition which will not be observed or overwhelm the public domain. The proposal allows for an additional room of some 2.4m in width at the upper level, if a setback is imposed of 500mm this would reduce the internal dimension of the room to 1.9m.

27 I note that in council's decision to approve the development application subject to conditions it allowed for a zero setback to the northern boundary.

28 The council argues that by allowing a variation from the Development Control Plan this would represent an undesirable precedent for the conservation area. In this regard I refer to the case of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 where precedent is a relevant matter in a merits assessment. However, in the circumstances of this case, where it is difficult or impossible to observe from the public domain; I am of the view that the proposed 500mm setback is not required on an assessment of the merits and would not create an undesirable precedent.

29 On the issue of giving proper, genuine and real consideration to the development control plan I refer to the judgment in the court of Appeal of Zhang v Canterbury City Council [2001] NSWCA 167. This judgment sets out the importance of having regard to guidelines articulated in DCP's but also states that these are not mandatory. Slavish adherence or compliance is not the test in an assessment of an application against the provisions in a development control plan. In the circumstances of the case can the variation is justified in a merits assessment and the conservation area will not be adversely impacted.

30 The issue of the chimney has been resolved in terms of the site inspection today such that the external chimney will remain in place and the current chimney no longer has the internal fireplace or workings and is therefore not required to be reinstated.

31 In my assessment under council's LEP and DCP's the modification for the extension to extend the full width of the dwelling in the terrace row is appropriate in these circumstances and will not adversely impact on the heritage conservation area or heritage items in the vicinity. In this regard I have carried out an assessment under the provisions of the LEP.

32 In these proceedings the modification application must be assessed having regard to the merits of the application and slavish adherence to the development control plan without a holistic understanding of the guidelines and controls and intent of the objectives for heritage conservation must be considered as opposed to one numeric control. Strict adherence without regard to the merits of the application and the overall objectives sought to be achieved in the LEP and DCP for the conservation of the area must prevail.

33 Accordingly, on the basis of my assessment the formal orders of the Court are: 1. The section 96 modification application for the property known as No. 3 Bellevue Street, Surry Hills is upheld. 2. The modification application is approved subject to the conditions in Annexure A. Annexure A is a consolidating set of conditions from the original approval. 3. The exhibits except A may be returned.

      J S Murrell
      Commissioner of the Court
      ljr/es

Annexure 'A' Conditions of Consent Betty Della Porta v Sydney City Council 3 Bellevue Street Surry Hills Rd (1) APPROVED DEVELOPMENT (a) Development must be in accordance with Development Application No. D/2006/1950/A dated 27 February 2008 and Planning Report prepared by Byrnes and Associates, dated February 2008 and Statement of Heritage Impact prepared by Cracknell Lonergan Architects Pty Ltd, dated February 2008 and the following drawings: Drawing Number Architect Date 0656-01 f Brad Inwood Architects 10/08/08 0656-02 f Brad Inwood Architects 10/08/08 0656-03 f Brad Inwood Architects 10/08/08 0656-04 f Brad Inwood Architects 10/08/08 0656-05 f Brad Inwood Architects 10/08/08 0656-06 f Brad Inwood Architects 10/08/08 0656-07-f Brad Inwood Architects 10/08/08 0656-08 -f Brad Inwood Architects 18/02/09

(amended by Court, 3 March 2009) and as amended by the conditions of this consent: (b) In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail. (2) DESIGN MODIFICATIONS The design of the building must be modified as follows: An amended second floor plan (currently drawing no. 0656-03c) shall be provided showing the location and retention of the chimneys to the north and south. The existing roof ridgeline should also be located on the second floor plan (a)(ii) A roof plan is to be provided showing the location and retention of the chimneys to the north and south. (a)(iii) An east-west section is to be provided showing the intersection of the new roof and chimney. (b) The 1st floor terrace shall be reduced in depth by 1.2m to match rear building line to limit potential for overlooking. The amendments are to be submitted for the approval of Council prior to a Construction Certificate being issued. - (1) MATERIALS AND FINISHES TO MATCH All new internal and external materials, finishes and works for making good must match the existing original work (2) RETENTION OF CHIMNEY The south chimney on the roof must be retained. Its flue may be removed only if the structural integrity of the chimney is not undermined by the demolition. In this regard, a verification report from a suitably qualified structural engineer is to be submitted to and approved by Council prior to the issue of a Construction certificate and demolition of the flue. The developer must undertake any mitigation measures specified in the approved report to ensure the retention and security of the chimney. (3) WORKS WITHIN THE SITE All proposed works are to be located wholly within the boundary of the site. (4) WASTE AND RECYCLING MANAGEMENT - MINOR The proposal must comply with the relevant provisions of Council's Policy for Waste Minimisation in New Developments 2005 which requires facilities to minimise and manage waste and recycling generated by the proposal. (5) NO DEMOLITION PRIOR TO A CONSTRUCTION CERTIFICATE Demolition or excavation must not commence until a Construction Certificate has been issued for construction of the substantive building. (6) SYDNEY WATER CERTIFICATE (NEW DEVELOPMENT) (a) The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site www.sydneywater.com.au, see Building Developing and Plumbing then Quick Check or telephone 13 20 92. (b) The consent authority or a Principal Certifying Authority must either: (i) ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate; or (ii) if there is a combined Development/Construction Certificate application or Complying Development, include the above condition as one to be met prior to works commencing on site. (7) BARRICADE PERMIT Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council. (8) STORMWATER AND DRAINAGE - MINOR DEVELOPMENT The drainage system is to be constructed in accordance with Council's standard requirements for systems that discharge into the public stormwater system . (9) STRUCTURAL CERTIFICATION FOR DESIGN - BCA (ALL BUILDING CLASSES) Prior to the issue of a Construction Certificate, structural details and a Structural Certificate for Design in accordance with Clause A2.2(a)(iii) of the Building Code of Australia(applicable to class 2-9 building) and Cause 1.2.2(iii) of Volume 2 of the BCA (applicable to Class 1 and 10 buildings) must be submitted to the satisfaction of the Certifying Authority (Council or a private accredited certifier). A copy of the certificate must be submitted to Council if Council is not the CA. (10) VERIFICATION OF SUPPORT FOR NEW LOADS For alterations and additions to an existing building, a certificate from a qualified practicing structural engineer (NPER) must be submitted to the PCA prior to a Construction Certificate being issued. The certificate must state that the existing structure is adequate to support the new loads and that the design will comply with the relevant Australian Standards adopted by the Building Code of Australia . (11) BCA - NEW BUILDING WORKS CLASS 1 & 10 BUILDINGS (a) Pursuant to Clause 98 of the Environment Planning and Assessment Regulation 2000, the proposed building work must comply with the Building Code of Australia (BCA) including: (i) Footings and Slabs - Part 3.2 (ii) Masonry - Part 3.3 (iii) Framing - Part 3.4; (iv) Roof and Wall Cladding - Part 3.5 (v) Glazing - Part 3.6 (vi) Fire Safety - Part 3.7; (vii) Health & Amenity - Part 3.8 (viii) Safe Movement & Access (Access and Egress) - Part 3.9; (ix) Wall and portions of external walls located within 900mm of side boundaries are to be protected by construction having a minimum FRL of 60/60/60 and details shall be submitted to the certifying authority (Council or accredited private certifier) prior to the issue of a Construction Certificate. (b) If compliance with the deemed-to-satisfy provisions of the BCA Vol 2 Housing Provisions and the matters listed in condition (1) above cannot be achieved, an alternate solution in accordance with Part 1.0 of the BCA Vol 2 - Housing Provisions, must be prepared by a suitably qualified and accredited person and be submitted to the Certifying Authority illustrating how the relevant performance requirements of the BCA are to be satisfied. Prior to a Construction Certificate being issued, the Certifying Authority must ensure that the building complied with the Building Code of Australia. (c) The BCA matters identified in this condition are not an exhaustive list of non-compliances with the BCA Vol2 - Housing Provisions. Any design amendments required to achieve compliance with the BCA must be submitted to Council. Significant amendments may require an application under Section 96 of the Act to be lodged with Council to amend the development approved in this consent. Note: The provisions of Clause 94 of the Environment Planning and Assessment Regulation 2000 have been considered in the assessment of the proposed development. (12) FLASHINGS TO BOUNDARY WALLS A flashing must be provided to prevent water entering between the proposed and existing external boundary walls of the adjoining properties. The consent of the adjoining property owner/s must first be obtained for connecting the flashing/s to the building/s. (13) GLAZING - COMPLIANCE WITH AUSTRALIAN STANDARD All glazing materials must be selected and installed in accordance with the relevant provisions of Australian Standard, AS1288 'Glass in buildings - Selection and installation'. (14) OCCUPATION CERTIFICATE TO BE SUBMITTED An Occupation Certificate must be obtained from the Principal Certifying Authority and a copy submitted to Council prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. (15) BASIX All commitments listed in each relevant BASIX Certificate for the development must be fulfilled prior to an Occupation Certificate being issued. (16) PROTECTION OF STREET TREES DURING CONSTRUCTION All street trees adjacent to the site not approved for removal must be protected at all times during demolition and construction, in accordance with Council's Tree Preservation Order. Details of the methods of protection must be submitted to and be approved by Council prior to the issue of the Construction Certificate and such approval should be forwarded to the Principal Certifying Authority. All approved protection measures must be maintained for the duration of construction and any tree on the footpath which is damaged or removed during construction must be replaced. (17) COVERING OF LOADS All vehicles involved in the excavation and/or demolition process and departing the property with demolition materials, spoil or loose matter must have their loads fully covered before entering the public roadway. (18) VEHICLE CLEANSING Prior to the commencement of work, suitable measures are to be implemented to ensure that sediment and other materials are not tracked onto the roadway by vehicles leaving the site. It is an offence to allow, permit or cause materials to pollute or be placed in a position from which they may pollute waters. (19) LOADING AND UNLOADING DURING CONSTRUCTION The following requirements apply: (a) All loading and unloading associated with construction must be accommodated on site. (b) A Works Zone is required if loading and unloading is not possible on site. If a Works Zone is warranted an application must be made to Council at least 8 weeks prior to commencement of work on the site. An approval for a Works Zone may be given for a specific period and certain hours of the days to meet the particular need for the site for such facilities at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities. (c) The structural design of the building must permit the basement and/or the ground floor to be used as a loading and unloading area for the construction of the remainder of the development. (d) If, during excavation, it is not feasible for loading and unloading to take place on site, a Works Zone on the street may be considered by Council. (e) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level. (20) NO OBSTRUCTION OF PUBLIC WAY The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of a notice by Council to stop all work on site. (21) SURVEY CERTIFICATE AT COMPLETION A Survey Certificate prepared by a Registered Surveyor must be submitted at the completion of the building work certifying the location of the building in relation to the boundaries of the allotment. (22) HOURS OF WORK AND NOISE - OUTSIDE CBD The hours of construction and work on the development must be as follows: (a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30am and 5.30pm on Mondays to Fridays, inclusive, and 7.30am and 3.30pm on Saturdays, with safety inspections being permitted at 7.00am on work days, and no work must be carried out on Sundays or public holidays. (b) All work, including demolition, excavation and building work must comply with the City of Sydney Building Sites Noise Code and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites".

  J S Murrell
  Commissioner of the Court
  ljr

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.