Prodromou v The Council of the City of Sydney

The proposal

1. The application seeks consent for additions and alterations to the existing terrace dwelling, including: 1. Extension of the ground floor/first storey by enclosing an existing rear patio. 2. Extension of the first floor/second storey by enclosing an existing rear balcony. 3. Extension of the second floor/third storey by 4.6m towards the rear lane, and through provision of a front dormer and associated changes to roofing. 4. Replacing and reconfiguring windows on the northern façade.
2. The additions and alterations would enlarge bedrooms and provide for other internal room changes; with increased fenestration along the northern façade allowing for improved sun and natural light to various habitable rooms.
3. In my appreciation the issues in dispute are limited to items (3) and (4) at [8] above. That is, matters relating to the third storey changes and the windows to the northern façade.
4. I will note here that leave was granted to the Applicant on the first day of the hearing to amend the application before the Court. The leave was to provide for the amended application to accord with the plans referenced in a joint expert report prepared by planning, heritage and urban design experts (Ex 1). These plans were located at Attachment 5 of this report. Henceforth, I will refer to these as 'the plans before the Court'. I also note here that Council agreed that leave for these plans caused no prejudice in that they only varied in an "unremarkable" way from the earlier plans, leave for the use of which was granted by the Court on 28 February 2020.
5. I also note that in the course of the hearing, the Applicant sought leave for further amendments to the application (by way of amended plans). Leave was not granted for this application. What is unusual here is that I accepted the plans the subject of this leave application into evidence (Ex D). This was because, as circumstances unfolded in the hearing, there was potential for the Ex D plans to provide some practical utility in the consideration of the possible application of conditions in any approval which might be forthcoming.

Planning provisions

1. The site is Zoned R1 - General Residential in the LEP. The relevant zone objectives are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. … • To maintain the existing land use pattern of predominantly residential uses.
2. The proposed alterations and additions are permissible with consent. The LEP imposes a maximum building height of 12m and a maximum floor space ratio ('FSR') of 1.5:1 on the site. Relevant LEP provisions, and matters in dispute between the parties, include cl 5.10 relating to heritage conservation (the site falls within the Baptist Street HCA, identified in the LEP as of local significance), and cl 6.21, relating to design excellence.
3. Sydney Development Control Plan 2012 ('DCP') applies to the site and is considered in evidence.

Lay submissions

1. As I am required to under subs 4.15(1)(d) of the EPA Act, I have considered the lay objections, as reproduced at Ex 6, and note that the core concerns related to building height, bulk and scale and implications for heritage conservation but also amenity impacts, in particular for the property to the west (across Burke Lane). The proposal was also seen by objectors to be at odds with certain DCP controls.

The application before the Court and potential consent conditions

1. Given the evidence before the Court in regard to potential conditions that might be imposed on any consent, it is necessary to provide further explanatory remarks on: (1) the proposal before the Court itself, (2) options considered by the experts in evidence and (3) certain submissions made by the Applicant with respect to the Court's final deliberations in regard to conditions of consent.
2. Should the above suggest any doubt, I should make clear here that the Council did not in any way support a positive determination of the application notwithstanding the conditions suggested by the Applicant.

Front dormer extension

1. There was agreement between the experts that the proposed front dormer extension, as proposed in the application before the Court (a component of the third storey extensions), was not appropriate and would have an unreasonable adverse impact.
2. The Applicant indicated to the Court during the hearing that he no longer pressed the front dormer extension.
3. I am mindful here of s 4.16 of the EPA Act, which is concerned with the determination of development applications. Subsections (1) and (4) are relevant and are reproduced below: (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (4) Total or partial consent A development consent may be granted - (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development.
4. As there is no evidence in support of the front extension, the position is straightforward for me that consent not be granted to this aspect of the development.
5. The points of attention then become: (1) the proposed third storey rear extension and (2) proposed windows on the northern façade of the existing building.

Third storey rear extension

1. The third storey rear extension can be thought of as involving three aspects.
2. First is the demolition of the existing third storey roof. While evidence from the Applicant's planning expert, J Swan, suggested some lack of clarity on whether the application before the Court would require this, I agree with Council's urban design expert, C Ch'ng, that the plans (Ex 1, Attachment 5) clearly would. There is text on the plans indicating "existing demolished in dashed line"; with arrows pointing to the existing roof in a dashed line (e.g. drawing DA 5.01). Council's experts see the retention of the original roof form as an essential. The Applicant's expert, Mr Swan, also believes the third storey roof should be retained, and that conditions could be applied to ensure this.
3. Second is the form of any new roof above the third storey. The application before the Court proposes a generally flat roofline above the third storey, including over the built form extension. Following on from [25], it can be understood that the experts do not support a new roofline over the existing third storey. The matter in dispute on the part of the experts is whether there is a need for, and if so the extent of, a "step down" between the western edge of the original third storey roof and any new roof over the third storey extension. Mr Swan believes this matter can be conditioned, Council's experts do not believe this is appropriate, and a step down in the order of 200mm is needed.
4. Third is the additional building massing at the third storey. The massing would extend to the laneway side of the rear balcony alignment (in effect resulting in a more or less single vertical plane to the lane - shown in drawing DA 4.01 Rev C) and be setback from the northern wall by up to 0.74m. Ms Ch'ng indicates that any additional massing "not extend beyond the external wall of the western façade on the first floor" (Ex 1, Contention 5, par 35). Mr Swan was satisfied with the proposal before the Court in this regard.

Northern façade windows

1. The plans show a total of six windows to the northern façade at present. The proposal would provide for twelve windows. The windows in the plans before the Court are supported by Mr Swan, and objected to by the Council's experts.

The Applicant's submission in regard to variations from the plans before the Court

1. In oral submissions during the hearing, and in the Applicant's closing written submissions filed 4 September 2020 ('ACWS'), certain statements were made by the Applicant in regard to what the Applicant was seeking of the Court. In essence, I take it that the Applicant suggested two alternatives to the Court (ACWS, p 1): 1. The first alternative would be to approve the application in accordance with the plans before the Court (with the exception of addressing the findings at [22]). 2. The second alternative involved subjecting the plans before the Court to certain consent conditions, which would have the effect of refining the particulars of the third storey rear extension in regard to two aspects: (1) the proposed demolition of the original roof and (2) the form of the proposed roof above the new building massing. The Applicant refers to this alternative as "the Conditioned Proposal" (ACWS, p 1).
2. In regard to the second alternative, I will mention here that the Applicant made certain other specific submissions which have certain relevance to latter conclusions in regard to the question of the relationship between the western edge of the original third storey roof and any new roof. The position put by the Applicant is that under the Conditioned Proposal the Applicant would "accept conditions" where: "… - the top floor roof to remain unaltered except for where the top floor roof meets the proposed extension on the top floor at the rear; and - the roof over the top level extension be a pitched roof commencing at the line where the top of the existing western wall meets the existing roof and then declining at a 1 degree angle to the new rear elevation."
3. I can now turn to the examination of the disputed issues and evidence in respect to them.

Issues

1. Council's contentions in this matter relate to design and heritage. According to Council the proposal: (1) would bring about an adverse effect on the heritage significance of the Baptist Street HCA, (2) would create detrimental visual bulk, and (3) does not demonstrate design excellence (as a consequence of the previous two items). The third item involves a jurisdictional test which will be examined below.
2. As indicated at [8], Council's contentions supporting the refusal of the application are focused on the third storey extensions and windows on the northern façade.

Heritage conservation

1. Council's contention is that the proposal would worsen the appearance of an existing "detracting" building and would interrupt the uniformity of a terrace row. These effects would be visible from the public domain. The result would detract from the significance of the Baptist Street HCA.

Policy provisions

1. Clause 5.10 of the LEP is concerned with heritage conservation. Subclause (1) outlines the clause objectives, which are (relevantly) as follows: (a) to conserve the environmental heritage of the City of Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views …
2. Subclause 5.10(4) is concerned with the effects of a proposed development on heritage significance, and provides (relevantly) as follows: 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…area concerned…
3. Section 3.9.6 of the DCP is concerned with heritage conservation areas and provides relevantly as follows: "Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area. The contribution of these buildings is based on studies carried out by heritage consultants for the City. New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: (a) topography and landscape; (b) views to and from the site; (c) significant subdivision patterns and layout, and front and side setbacks; (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (e) the interface between the public domain and building alignments and property boundaries; and (f) colour schemes that have a hue and tonal relationship with traditional colour schemes. (2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above. … (4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area."
4. Following on from the above, the Baptist Street HCA 'statement of significance' dated 10 July 2003 is as follows (Ex 6, p 100): "The Baptist Street Conservation Area has historic significance as an 1890 residential subdivision of an early industrial precinct (Baptists Nursery c.1830). The area has aesthetic significance for its highly consistent rows of terrace houses and shops from the late Victorian and early Federation period enhanced by mature avenue plantings and its fine religious and institutional buildings. The area is predominantly intact."
5. The inventory sheet included certain additional commentary of pertinence to "non contributing sites", under the heading "recommended management". The following were comments of note (Ex 6, p 104): "Neutral and detracting buildings should where possible be enhanced. Replacement of such buildings should be in accordance with the infill provisions of the relevant planning controls."
6. As indicated above, the DCP's Building Contributions map shows the site as "detracting". Section 3.9.9 of the DCP is concerned with detracting buildings, and provides relevantly as follows: "Detracting buildings are buildings that are intrusive to a heritage conservation area because of inappropriate scale, bulk, setbacks, setting, design or materials. They do not represent a key period of significance and detract from the character of a heritage conservation area. (1) Development on sites containing detracting buildings is to improve the contribution of the site to the character of the heritage conservation area. (2) Alterations and additions to, or redevelopment of, detracting buildings are to: (a) remove inappropriate elements or features that are intrusive to the heritage significance of the heritage conservation area; and (b) respect the prevailing character of the area and street in terms of bulk, form, scale and height."
7. The DCP's Locality Statement for the Baptist Street Precinct (section 2.13.4) has pertinence here and is relevantly reproduced below: "… The Baptist Street neighbourhood is to remain a low scale residential area. The consistent terrace rows including their scale and proportions, roof design and materials are to be retained. High quality alterations and additions should retain the rear yard character and residential amenity. Pocket parks, including street closures will continue to play an important role in enhancing the area. Principles (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Protect the streetscape character and preserve consistent rows of terrace houses. (d) Maintain heritage and contributory terrace rows along streets and lanes. (e) Retain the low scale built form, consistent building types and original roof forms. (f) Design infill development to allow visual appreciation of heritage and contributory items by responding to the height, mass and predominant horizontal and vertical proportions of these buildings. (g) Alterations and additions are to be confined to the rear of dwellings to retain the scale and massing of front elevations. (h) On-site vehicle parking is to be provided from rear lanes. (i) Use simple pitched roof forms where they are the dominant feature of existing streetscapes. (j) Retain the predominant residential character of this locality. …"

Evidence

1. In regard to heritage conservation, P Misra gave evidence on behalf of Council. Mr Swan gave evidence on behalf of the Applicant.
2. The concerns from Ms Misra's viewpoint include visual bulk, changes to roof form and windows at the exposed northern façade of the existing building. There would be a "considerable" amount of visual bulk added to the upper level of the terrace which was originally designed to be an attic. Having regard to the locality statement at [41], Ms Misra finds that the second floor rear addition as proposed does not retain the consistency of the subject terrace row or minimise interference with the original form of the terrace building. Nor is the proposal seen to be sympathetic or respectful of the existing scale of the terrace. The proposed dark ('Monument') colouring of the rear extension would not present a good heritage outcome.
3. The proposed additions "should be visually subservient to the existing terrace and the row through colour, design and bulk and the proposal fails to achieve that" (Ex 1, Contention 1, Misra, par 13). The consequential visual impact, according to Ms Misra, means the proposal "fails to improve the contribution of this terrace in the HCA as required" (by DCP, section 3.9.9 - see [40]).
4. In his written evidence, Mr Swan makes certain references to suggested "changes" to the proposal which I believe to be centrally in regard to the building frontage and particularly the front dormer (see my commentary at [22]). I note this just to contextualise the following commentary in regard to the heritage conservation issue (Ex 1, Contention 1, Swan, pars 7-10): "7. Subject to the changes that I have described the proposal complies with objective (b) of clause 5.10 of the LEP by improving the associated fabric, setting and view. 8. Subject to the changes that I have described the proposal generally satisfies the principles of cl 2.13.4 - Baptist Street and improves the appearance of the existing detracting building. The proposal remains a three story building as is the existing, and as permitted within council's LEP 2012 and DCP 2012. 9. Subject to the changes that I have described the proposal respects the character of Baptist Street HCA and complies with the objectives of clause 3.9.6 in DCP 2012. It is noted the importance of respecting and complementing neighbouring buildings in alterations and additions rather than replicating them. 10 Subject to the changes that I have described the proposal complies with cl 3.9.9 - Detracting buildings in the DCP."

Design and visual bulk

1. Council's contention is that the form and height of the proposed addition would create detrimental bulk affecting the uniformity of the existing terrace row and in a location highly visible from the public domain.

Policy provisions

1. The LEP imposes a maximum building height of 12m (the site also falls within the DCP's three storey control). The maximum building height indicated in the plans before the Court is about 9.2m. The LEP imposes a maximum FSR of 1.5:1 on the site. The plans indicate an FSR of 1.39:1.
2. The controls of concern to Council in regard to this contention are for the most part related to section 4.1.4 of the DCP, concerned with additions and alterations. The objectives of the section are as follows: "Objectives (a) Achieve sympathetic development and maintain the fabric of existing terraces. (b) Protect and respect the traditional character and heritage significance of heritage items and heritage conservation areas and contributory buildings by: (i) ensuring additions are of an appropriate scale and appearance and relate to the scale and character of the existing building and the street; (ii) minimising alteration of the original building and respecting the uniformity of an intact pair, group or row of buildings."
3. Council raised a number of particular controls, some of which I will reference below in consideration of the evidence.

Evidence

1. Mr Swan gave evidence on behalf of the Applicant and Ms Ch'ng gave evidence on behalf of Council.
2. While there was some overlap in principle with the heritage conservation contention, the evidence on this issue focused on the reasonableness of the massing towards the rear, along with the rear roof configuration.
3. Both experts believed the roof form should be retained with Mr Swan suggesting this would allow the "original roof form, slope and ridge to be easily discerned" when viewed from the north and the "park" (Ex 1, Contention 2, Swan, par 4). This would allow the bulk and scale of the proposal to be acceptable in visual terms. The particulars of this roof detailing are discussed below.
4. Mr Swan indicated there were several recently approved and constructed upper level extensions to contributory buildings in highly visible locations which involved considerable additional elevated bulk and the use of contemporary material. He referred specifically to one at 85 Kepos Street Redfern. Mr Swan indicated this was approved by Council with a contravention of LEP standards in regard to FSR and building height; and the DCP control in regard to number of storeys.
5. Ms Ch'ng believed the additions needed to be secondary to the existing roof form, and that the massing needed to maintain the 2 storey scale and bulk to the lane.

Policy provisions

1. Clause 6.21 of the LEP has an objective to "deliver the highest standard of architectural, urban and landscape design". Under subclause (3) there is now power to approve the development unless the Court is of the opinion that "the proposed development exhibits design excellence". In considering this, I must have regard to a number of listed matters under subclause (4), as follows: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters - (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.

Evidence

1. Ms Ch'ng believes the existing terrace row itself exhibits design excellence and describes why this is so in her view (Ex 1, Contention 5, pars 1-12). Ms Ch'ng then posits reasons why the proposal does not exhibit design excellence. I quote selectively as follows (Ex 1, Contention 5, Ch'ng, pars as indicated): "14. The proposed additions are not compatible with the building type. The additions dominate the existing building rather than being secondary to the original building, the proposed form of the additions compete with the form of the existing building and disrupt the consistency of the row. … 16. To the rear, the addition extends too far to the west. It increases the street frontage height to Bourke Lane from 2 storeys to 3 storeys. This also increase the street frontage height of the Zamia Street façade from a predominantly 2 storey, part 3 storey street frontage to being mainly a 3 storey street frontage height. 17. This is incompatible with its location along the lane, interfacing with the surrounding 1-2 storey houses. Even 843 Bourke Street which is built closer to the lane, steps from 3 storey down to two storeys towards the lane. 18. A key issue with the proposed additions is the removal of the existing pitched roof form and replacing it with a flat roof. While not only creating detail and construction issues it changes the profile and massing of the terrace. The original roof form can no longer be discerned and this is incompatible with the row to which it belongs and the scale of the surrounding houses. This does not exhibit a standard of architectural design or detailing for this building type."
2. Mr Swan does not believe the existing terrace exhibits design excellence because (Ex 1, Contention 5, Swan, par 5): "a. The existing building does not have a high standard of architectural design, materials and detailing appropriate to the location. b. The existing building does not respect the heritage significance of the conservation area as represented by Council listing the building as detracting. c. The bulk and scale of the existing building is not representative of the predominately single storey heritage conservation area."
3. While his written evidence did not directly profess a view whether the proposal exhibited design excellence, in regard to the question, Mr Swan indicated in written evidence as follows: "7. When considering whether the proposed development exhibits design excellence consideration needs to be given to the current prevailing planning controls. 8. Relevantly the site has an FSR of 1.5:1 and a maximum height of 12m. In addition, the subject site is identified as having a 3 storey height limit. These controls exceed every other site within the heritage conservation area, recognising the bulk and scale of the existing building and future development of the site.

9. I note that the application complies with FSR, Height and storey controls. 10. In my opinion subject to the following, the proposed alterations and additions will not set an undesirable precedent in the locality and the bulk and scale will not overwhelm the existing detracting building: d. Modification to the proposed front roof addition as described in Contention 1 - Heritage Conservation Impacts. e. Use of double hung windows as agreed between the experts. f. Retention of the existing roof profile and form at the front of the building. 11. It is noted that there is already built form within the row that extends at the 3rd level to the rear (photo provided). 12. I am comfortable with the colours and materials used and am of the view that it Council continue to be concerned with the rear built form consideration can be further considered to the vertical vs horizontal appearance of the rear."
10. In written and oral evidence, Mr Swan referred to other alterations and additions within the HCA which proposed significant development, including a large rear roof addition at 85 Kepos Street, Redfern, certain details of which were provided (Ex 1, Attachment 14).

Submissions of the Applicant relating to the legality or form of the evidence of Council experts

On certain relationships between LEPs and DCPs and the flexible application of DCP controls

1. At a number of points in the Applicant's closing submissions it was indicated that there was an incorrect understanding and application of the LEP and DCP, on the part of Council experts, which resulted in incomplete or improper consideration of the controls and alternatives. I will concentrate on two aspects.
2. The first aspect I will concentrate on is in regard to the evidence of Ms Misra and heritage considerations. The Applicant suggested an over-attention to the DCP over the provisions of the LEP. The argument had two limbs, as follows, in my interpretation. Limb "A" was that the objectives to cll 4.3 and 4.4 of the LEP (concerned with height of buildings and FSR respectively), in the case of Ms Misra at least, were given no attention (ACWS, p 4): "The Applicant submits that there is much more communicated in these clauses than the maximum set down in sub clause 2 of the above clauses. The objectives are directed to ensuring appropriate intensity of development in appropriate locations. By not considering these clauses Ms Misra has not properly considered the LEP or DCP and has not given proper or adequate consideration to any proposal."
3. Limb "B" was that insufficient attention was given to aim (c) of the DCP (section 1.3), which provides as follows: "This DCP provides controls which guide development in order to: … (c) build upon the detailed objectives and controls under Sydney LEP 2012; …"
4. The second aspect of this argument of the Applicant that I will concentrate on relates to Ms Ch'ng's evidence, and what are argued as its "attempts to retain a detracting building in its original form…outside of the intent of the LEP and DCP" (ACWS, p 11), and that Ms Ch'ng's position adopts a level of inflexibility which "is mistaken and is not contemplated under the DCP or LEP". The submission was as follows (ACWS, p 11): "This belief that the building has significant intrinsic value has informed (Ms Ch'ng) and the Respondent's position and it has led to the present circumstances where the Respondent would not support any potential additions and alterations to the building. The only significant exception is the idea of a potential ground floor addition at the rear whether extension from the existing house or a rear lane 1 ½ storey addition which is not sought by the Applicant for good reason. This level of inflexibility is mistaken and is not contemplated under the DCP and LEP. The positioning demonstrates an erroneous approach to consideration of the proposal and a lack of proper and reasoned consideration generally, but also a lack of consideration of all of the DCP and LEP including the clauses that clearly run counter to this positioning including: clauses 4.4(1) and 4.5(1) of the LEP (sic); clause 1.3(c), cl 2.13.4(a), 3.9.6 and in particular 3.9.6(4), of the DCP; and the clear explanations in the Inventory Sheet as to what is valued and what is not, and how to manage development of each [note development is required to be consistent with the policy guidelines of the Inventory Sheet under clause 3.9.6(4) and note also cl. 3.9.14 of the DCP];…"

The applicability of objectives relating to height of buildings and floor space ratio controls within the LEP

1. The proposal complies with the height of buildings and FSR controls, at cll 4.3 and 4.4 of the LEP, respectively. The Applicant is, in my understanding, arguing that the objectives of the FSR and height clauses in the LEP should be recognised as providing some credit to the proposal. I reproduce these objectives below, relevantly: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, … 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
2. The Applicant's submission that there is "much more communicated" in the height and FSR clauses than that of setting development standards is questionable as a matter of statutory construction. I refer below to the findings of Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 (Wenli Wang) which reference the limited function of objectives of clauses of this form. The conclusion is drawn, particularly at [40]-[41] reproduced below, that the nominated objective for clauses similar to cll 4.3 and 4.4 in the LEP relate to the setting of a development standard: "40 The objectives of the standard have relevance where an applicant seeks to vary the development standard by way of a request pursuant to cl 4.6. The consent authority must then be satisfied that the objectives of the clause are met notwithstanding the breach of the development standard. Such a request is not required in the present case as the proposed development complies with the 8.5 metre building height development standard. 41 Accordingly, I find that the objectives of the development standard are of limited assistance in the present case. In those circumstances it is not necessary to make a finding as to whether the objective of promoting "the retention and, if appropriate, sharing of existing views" is achieved by the proposed development."
3. While in Wenli Wang, the objectives were called up to raise points of objection to a development proposal, it would seem to me a similar conclusion might be drawn in this case, where the Applicant is seeking to use these clause objectives in support of a development proposal.
4. Further, I would observe that the LEP's building height and FSR clause objectives do not go one way. That is, even if they had relevance beyond "the clause" itself, the nominated objectives could not be seen, in my view by a direct reading, as providing much particularly in the way of support for the proposal in regard to the concerns raised with regard to it.
5. Moreso, it seems to me, the Applicant is arguing for greater acknowledgement of the compliance of the proposal with the important development standards relating to building height and FSR. Indeed, Mr Swan makes this case when arguing the design excellence test at cl 6.21 of the LEP at [58].
6. Wenli Wang is also useful here at [64], where Robson J finds: "The fact that the development standards in the LEP are met means that the DA has passed through the jurisdictional gate to the merits assessment process in s 4.15 of the EPA Act. The maxima provided for in the development standards are not rights to develop to those levels…"
7. Like His Honour, I do acknowledge in the circumstances of this case that the proposed development would comfortably meet the building height and FSR controls which apply, and this should be factored in the consideration of the overall merits evaluation.

Flexibility and DCPs

1. The Applicant is correct in referring to the need to be flexible in the application of DCP controls. The relationship between the LEP and DCP can also be best considered by direct reference to the statutes and in light of caselaw. Section 4.15(3A) of the EPA Act provides as follows: Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
2. Subsection 4.15(3A)(b) of the EPA Act directs me that, in instances of DCP non-compliance, I need to be "flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development". In addition to this provision I have had regard, in particular, to two authorities on the application of DCPs, namely, Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang) and Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (Stockland). Zhang suggests the DCP as "focal point" for deliberation on a development application at [77]. I turn to the findings of the former Chief Judge in Stockland. While here talking about adopted "urban design controls", McClellan CJ found: "Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters."
3. "Cogent reasons" to suggest otherwise would include a lack of consistent application of a DCP.
4. The Applicant made submissions relating to lack of consistent application of the DCP heritage-related controls, in the site environment. There was considerable documentation admitted into evidence in regard to this submission, particularising prior Council approvals in the general site environs (Ex A and B).
5. During the hearing, there was some considerable attention given to these prior approvals. Council's experts were drawn to various approvals, with the Applicant questioning them on why the approvals did not evidence inconsistent application of planning controls raised as points of objection against the subject proposal.
6. Firstly on this, I acknowledge the evidence in support of this submission of the Applicant expressed by Mr Swan (including in his expert report provided in response to questions of the Applicant filed on 31 August 2020). However, my conclusion is that, after this considerable examination of the topic in oral questioning by the Applicant, I was more convinced by the arguments of Council's experts that there were reasonable explanations for the approval of other non-conforming development in the site surrounds. The most obvious being the circumstances surrounding approvals in Kepos Street, where the "scene had been set" prior to the current controls coming into force (reference RCS, par 3(h)-(i)).
7. Important to me is that my own observation during an inspection of the site and the surrounding HCA (and also having regard to a video of the setting tendered into evidence as Ex 7), was of a good level of intactness; generally consistent with the findings of the HCA statement of significance (Ex 6, p 100).
8. I have considered the Applicant's submissions relating to certain DCP provisions and the heritage inventory assessment at [63]. For example, there is reference to the retention of "rear yard character and residential amenity" in the Bathurst Street Locality Statement (section 2.13.4). I believe here the Applicant is countering the suggestion of Council experts that there might be potential for further development in the rear yard of the subject property. While there may be some opportunities for development in the properties rear yard, I accept that this would be constrained, including in regard to the existing parking use. I provide further comments in regard to this at [82].
9. I have not found anything incorrect or improper, on the part of Council experts, in the understanding and application of the LEP and DCP. The quality of this consideration, and that of the Applicant's expert, is examined below.

Council experts' advisings on alternatives to the application before the Court

1. The Applicant argued that Council experts were wrong in policy, or impractical, in the consideration of alternatives to the subject proposal, such as in regard to roof form, extensions into the backyard and windows (e.g. ACWS, p 2).
2. In both written and oral evidence there were some suggestions made in regard to possible alternative developments. The most notable one, in terms of policy conflict, was in regard to the possibility of development in the backyard of the dwelling as an alternative to at the third storey level, when the DCP's Locality Statement for the Baptist Street Precinct included provisions supporting "rear yard character" (see [41]).
3. The principal task before me is the evaluation of the application before the Court. While I will give some consideration to potential future consent conditions as means of addressing impacts, the implications of non-approval of the application, including the views of experts in regard to alternatives that may be considerations for the Applicant, do not significantly assist me in this principal task.

Heritage conservation implications of building bulk at the third storey and proposed fenestration at the northern elevation

1. The point of attention at cl 5.10(4) of the LEP is the consideration of the effect of the proposal on the heritage significance of the HCA. The statement of significance of the HCA is reproduced at [38]. It points to historic significance and aesthetic significance. A factor in this aesthetic significance is the "highly consistent rows of terraces…from the late Victorian and early Federation period". Clearly, the more recently built terrace row of which the subject site is part, is not that which is being referenced in the statement of significance.
2. But, and in accordance with section 1.3(c) of the DCP, the DCP provisions and, in this instance, HCA inventory sheet provide guidance on how the effect of the proposed development on the heritage significance of the HCA might be reasonably managed. Given the fact that the proposal sits within a HCA, it is reasonable, mindful of Zhang at [77], to consider the heritage related controls as a focal point for deliberation on this proposal.
3. The controls seem reasonably clear in their objectives. They are seeking to "conserve" the heritage significance of the Baptist Street HCA. In some settings, such as HCAs where the level of HCAs has faded, this objective would have less weight in the balancing act of development application evaluation. But in this instance, I agree with Ms Misra that the area "possesses a coherent visual character of highly intact and consistent repetitive and rhythmic rows of terrace houses" (Ex 1, Contention 1, par 1).
4. The instruction from the heritage inventory sheet, with respect to "detracting" buildings, is that they "where possible be enhanced". The DCP gives reasonably consistent further direction:

• New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions (section 3.9.6 introduction)
• Alterations and additions are to complement the character of the HCA and sympathetically respond to matters such as form, height, bulk, roofscape, scale (sections 3.9.6(1) and (2))
• Development on sites containing detracting buildings is to improve the contribution of the site to the HCA (section 3.9.9(1))
• Alterations and additions to detracting buildings are to respect the prevailing character of the area and street in terms of bulk, form, scale and height (section 3.9.9(2)(b)).
• The Locality Statement for the Baptist Street Precinct (section 2.13.4) highlights the need to retain terrace rows, including retention of their scale, proportions, roof design and materials.
• Alterations and additions are to be confined to the rear of dwellings to retain scale and massing of front elevations (section 2.13.4(g)), but at the same time retain "rear yard character" (ibid).

1. In principle, I might summarise these provisions as seeking alterations and additions to be compatible with and not detract from the heritage conservation values in the area.
2. As indicated above there is agreement on the part of the experts with respect to the front dormer (that is to say it is inappropriate), but that is as far as the agreement goes essentially.
3. If the Court is to find in favour of the Applicant, it would be expected that the Applicant would make its case against the contention raised by Council that the proposal would detract from the significance of the Baptist Street HCA in regard to heritage impact. Indeed, there is a jurisdictional requirement for me to consider the effect of the proposed development on the heritage significance of the Baptist Street HCA under cl 5.10(4) of the LEP.
4. The Applicant's expert provides limited evidence in regard to this question. I reproduce the most direct evidence on the question at [45]. Mr Swan indicates he believes the proposal complies with objective (b) of cl 5.10 of the LEP by "improving the associated fabric, setting and view", a particular raised in Council's contentions. He does not sufficiently particularise why he believes this to be the case. Mr Swan similarly opines that: (1) the appearance of a detracting building (ie the terrace row of which the subject building is a part) would be improved, (2) the character of the HCA is respected, and (3) the objectives of section 3.9.6 of the DCP, concerned with heritage conservation areas, are complied with. Again, in my view there, there are insufficient reasons given in evidence why these opinions are held by Mr Swan.
5. It seems to me that the Council experts provide a coherent argument as to why the proposed alterations and additions would provide a visually intrusive element detracting from the heritage conservation area's aesthetic character. The concerns relating to (1) roof configuration, (2) extent of rear addition including loss of upper rear verandah and consequent building profile or silhouette to the north and the lane, (3) fenestration and (4) colour scheme have not been adequately countered.
6. I agree with Council's experts that the existing terrace row exhibits "strong consistency and uniformity, continuity of the ridgelines, roofs, verandahs and the balustrades". Something seen as of value in the Baptist Street locality statement. I note the exception of 843 Bourke Street but I do not see this as visually disharmonious due to its location, setback from main viewer positions, and the reasoning behind its existence.
7. It follows for me that the bulk and scale of the third storey extension means something of current value would be disrupted by the proposed changes. I agree with the Council that the proposed changes at this upper level would stand out in a somewhat prominent area of the HCA.
8. The windows and accompanying louvres would also standout. The fact that the louvres are required to meet current BASIX requirements, perhaps an example of policy conflict in this instance, does not assist in the visual compatibility challenge faced by the application. The number and form of fenestration again would have the proposed alterations stand out significantly from the modest northern elevation of the terrace row.

Amenity implications of third storey extension

1. I also need to give consideration to objections raised in public submissions. The most noteworthy were those from the neighbour to the immediate west across the rear lane and concerned amenity impacts. The concerns were in regard to loss of visual and acoustic privacy to the rear private open space, and creation of "an unacceptable sense of enclosure and loss of natural light" to the rear open space. I note that were the proposal to reduce the extent of the third storey extension, as suggested necessary by the controls by Council experts, then the suggested amenity impacts would be reduced.

Design excellence

1. There is a jurisdictional hurdle before the application under cl 6.21 of the LEP, requiring the Court to be of the positive opinion that the proposed development exhibits design excellence. The provisions are cited at [55]:
2. The Applicant submits that Ms Ch'ng's evidence is "erroneous and inadequate", for two reasons. First that Ms Ch'ng had not had regard to the matters she was required to under cl 6.21(4). Second, that she had regard to, and gave inappropriate weight to, a matter (whether the existing terrace row exhibited design excellence) which she was not required to.
3. I would not see it as necessary in the presentation of evidence in a joint expert report to provide expert commentary on each of the factors listed at cl 6.21(4). Certainly, this is not what was Mr Swan has done in his evidence.
4. It is true that it is not a part of the design excellence test, for alterations and additions, to evidence the design excellence of the pre-existing development. The more common approach would be to review listed matters at cl 6.21(4) and highlight the items of particular relevance to the expert, and present evidence with respect to these. Ms Ch'ng has done something different in her evidence. She attempted to present an argument on what design excellence embodies by describing the existing terrace row's design features in response to setting. Ms Ch'ng acknowledged that the existing terrace row was listed as "detracting" in the HCA but did not agree with this designation. This was then compared with characteristics of the proposal. While there were further criticisms in respect to the design, a summary point was (par 14): "The proposed additions are not compatible with the building type. The additions dominate the existing building rather then being secondary to the original building, the proposed form of the additions compete with the form of the existing building and disrupt the consistency of the row."
5. Mr Swan's evidence was that the existing terrace row does not exhibit design excellence. He relied on the "detracting" designation in the DCP. Mr Swan posited: "4. Detracting Buildings within Sydney DCP 2012 at Clause 3.9.9 are described as: 'Buildings that are intrusive to a heritage conservation area because of inappropriate scale, bulk, setbacks, setting, design or materials. They do not represent a key period of significance and detract from the character of a heritage conservation area.' 5. The existing building(s) does not demonstrate design excellence in accordance with Clause 6.21 Design Excellence of Sydney LEP 2012 because: a. The existing building does not have a high standard of architectural design, materials and detailing appropriate to the location. b. The existing building does not respect the heritage significance of the conservation area as represented by Council listing the building as detracting. c. The bulk and scale of the existing building is not representative of the predominately single storey heritage conservation area."
6. Mr Swan was less detailed in his commentary on whether the proposed development itself exhibited design excellence under cl 6.21. As indicated above, he gave weight to the proposal's compliance with FSR, height and number of storey controls in the DCP.
7. In closing submissions, the Applicant submits that (ACWS, p 16): "In the Amended SOFAC the Respondent has not identified what regard has been had by the Respondent to the matters identified in the subclauses of cl 6.21(4) of the LEP."
8. The Applicant addresses its criticism of Ms Ch'ng at [104] by providing what seems to be the Applicant's own evidence in regard to relevant provisions at cl 6.21(4).

Conclusion

1. In this hearing, it is necessary for the Applicant to make its case in regard to the contentions raised, including in regard to the jurisdictional hurdle at cl 6.21 of the LEP. Prior to any approval determination, the Court would need to form a positive opinion, under cl 6.21(3) that the proposed development exhibits design excellence. While I have worked through the material provided in the Applicant's closing submission on the matters to which regard must be had by me at cl 6.21(4) of the LEP, the key points of attention for me in regard to design excellence align with the points already raised as in dispute (heritage and visual bulk). My findings in regard to these matters are for the most part against the Applicant in that the development would be inappropriately intrusive in regard to roofing and massing at the third storey and window detailing at the northern facade.
2. There was no persuasive argument that the proposal exhibited design excellence under cl 6.21 of the LEP. In consideration of the above analysis of the evidence and submissions, I am not of the opinion that it does.
3. On the basis of the above analysis, the proposal would be refused on merits in any event. The positive effects of the proposal, principally associated with the amenity benefits provided to occupants, which would be very important of themselves to the beneficiary, are private benefits and insufficient to counter the negative effects of the proposal relating to heritage impact and visual bulk. However, in this case the question of merits is academic. Mindful of cl 6.21 of the LEP and my findings in regard to design excellence, there is no power to consent to the application.
4. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application D/2019/1060 for alterations and additions to the existing terrace style dwelling at 835 Bourke Street, Redfern is refused. 3. The exhibits are returned with the exception of Exhibit 1.

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: 30 October 2020