Sekulovska v The Council of the City of Sydney [2021] NSWLEC 1613 | Case summary

Sekulovska v The Council of the City of Sydney [2021] NSWLEC 1613 | Case summary | Zoe

[6]

Planning framework

The Site is within the R1 General Residential Zone under the Sydney Local Environmental Plan 2012 (LEP). Development for the purposes of semi-detached dwellings is permissible with development consent on land within that zone.
The LEP also contains development standards relating to building height (cl 4.3) and floor space ratio (cl 4.4). The Proposed Development complies with both standards.
Clause 5.10 of the LEP deals with heritage conservation. The relevant objectives of the clause are set out in cl 5.10(1) 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…
The existing cottage is not a heritage item. However, the Site is located within the Former Macdonaldtown Estate HCA under the provisions of the LEP.
As the Site is in a heritage conservation area, cl 5.10(2)(e) requires development consent for the erection of a building on it. Clause 5.10(4) provides that the consent authority must, before granting such consent, consider the effect of the proposed development on the heritage significance of the HCA.
Clause 6.21 of the LEP applies to development involving the erection of a new building on land to which the LEP applies and therefore also applies to the DA. The objective of the clause is "to deliver the highest standard of architectural, urban and landscape design": cl 6.21(1). Clause 6.21(3) provides that development consent must not be granted to development to which the clause applies unless, in the opinion of the consent authority, the proposed development exhibits "design excellence". That expression is not defined; however, cl 6.21(4) provides that, in considering whether development exhibits design excellence, the consent authority must have regard to matters set out in cl 6.21(4)(a) to (d). These provisions will be discussed in some detail later in this judgment.
State Environmental Planning Policy No 55 - Remediation of Land applies to the Site. The Site has been used for residential purposes for many years and there is no indication that any contaminant generating uses have been carried out on it.
The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also applies. As required by cl 2A of Sch 1 of the Environmental Planning and Assessment Regulation 2000, the DA is accompanied by a BASIX Certificate.
There are also several provisions of the Sydney Development Control Plan 2012 (DCP) that are relevant to the determination of the appeal.
The Site is identified as a contributing building on the Building Contributions Map for the conservation area under the DCP.
Clause 2.7.5(j) of the DCP provides that development is to "Limit vehicle access to lots from rear lanes, where possible".
Clause 3.9.6(3) of the DCP provides that "Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area".
Clause 3.9.6(4) of the DCP provides that "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." Relevantly, one of the recommendations (recommendation 2) of the Heritage Inventory Assessment Report for the HCA is to "Reduce impact of existing carparking access from the street".
Clause 4.1.9(2) of the DCP provides that "Car parking spaces and structures are to be located behind the main building line and be subordinate in appearance to the main building".
Clause 4.1.9(5) of the DCP provides that "Car access is not permitted across the front boundary for terrace houses or properties in heritage conservation areas."

[9]

Design Excellence

Clause 6.21(3) of the LEP provides that development consent must not be granted to development to which the clause applies unless, in the opinion of the consent authority, the proposed development exhibits "design excellence". As this is a threshold jurisdictional issue, it is appropriate to deal with it first.
Clause 6.21 of the LEP has been considered by the Court on a number of occasions. The Court has held that:

Clause 6.21(3) is a precondition to consent. It requires the Court to form an opinion, before granting development consent, as to whether "the proposed development exhibits design excellence". This phrase is not defined. In considering whether the proposed development exhibits design excellence, the clause requires a consideration of the matters in subcl (4) in order to achieve the objective of the clause being the delivery of "the highest standard of architectural, urban and landscape design": MGT 6 Pty Ltd v City of Sydney Council [2017] NSWLEC 1211 at [85];
The matters for consideration under subcl 6.21(4) are cumulative and when considered together determine whether the development, as a whole, exhibits design excellence: Aloke Holdings Pty Ltd v City of Sydney Council [2019] NSWLEC 1177 at [85];
Clause 6.21(1) specifies the overall objective for the clause. It is an overarching, aspirational objective to which the whole clause is directed. It is not expressly or impliedly called up as a mandatory relevant consideration in any other subclause. It does not require, expressly or impliedly, that a consent authority must decide that a development will in fact deliver the "highest standard of architectural, urban and landscape design": Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 at [105].

In Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126, Moore J, in considering a provision similar to cl 6.21 in the Blacktown Local Environmental Plan 2015, found that the following assessment was required: "62 Subject to what I discuss in the next section concerning cl 7.7(4)(a), it would usually be necessary for the Commissioner to engage with the evidence of those experts concerning each of the elements to which he was required to have regard by virtue of cl 7.7(4). Whilst his consideration of those factors, where the experts were in agreement, would not have required extensive analysis (unless the Commissioner disagreed with the conclusion the experts had reached), nonetheless, he was required to address each of the agreed matters and express a view on the experts' position and his reason for adopting that view. 63 Where there was disagreement between the planning witnesses, the Commissioner needed to engage with that disagreement; reach a conclusion as to what was the appropriate resolution of that disagreement; and explain why he had reached that conclusion. 64 Having undertaken that process with respect to the matters set out in cl 7.7(4), the Commissioner would then need to reach his conclusion, in light of all of that material, as to how the question posed by cl 7.7(3) was to be answered. This would have required weighing his various conclusions concerning the various elements in cl 7.7(4) in order to reach an overall answer to the question posed by cl 7.7(3). He would have needed to give sufficient reasoning in support of that conclusion to enable the parties (particularly whichever party was unsuccessful on that point) to understand why he had made that determination."
As I have noted above, cll 7.7(3) and (4) referred to in Madss are in similar terms to cll 6.21(3) and (4) of the LEP. Therefore, applying the same approach, the Court in this appeal is required to consider each of the matters set out in cl 6.21(4) in order to reach an overall answer to the question posed by cl 6.21(3), i.e. whether, having regard to the considerations set out in cl 6.21(4), the Proposed Development exhibits "design excellence". I will therefore consider each of the matters raised by cl 6.21(4) before deciding whether, having regard to my findings, I am able to conclude that the Proposed Development exhibits design excellence.

[10]

Clause 6.21(4)(a) - whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved

The Council contends that the Proposed Development does not comply with cl 6.21(4)(a) as it does not achieve a high standard of architectural design, materials and detailing appropriate to the building type and location, and does not successfully address streetscape constraints.
The Council's urban design expert, Julia Pressick, gave evidence that a number of factors contribute to the façade of the Proposed Development not being consistent with the existing character of the streetscape. Her evidence focusses on the appearance of the following aspects of the Proposed Development: 1. The garage door; 2. The sloping driveway into the basement carpark; 3. The truncated verandah; and 4. The appearance of balustrading near the front door of No. 27.
Ms Pressick gave evidence that the basement garage with its steeply sloping driveway and garage door, which she says will be visible from the footpath when approaching and standing in front of the Site, would provide a front elevation/facade that is not consistent with the existing character of the streetscape. She says there are no basement garages or dwellings with garages in their front building elevation fronting Bray Street.
Her evidence is that Bray Street is also characterised by dwellings with ground floor verandahs. The 1.7m wide verandah with side balustrade at 27 Bray Street will, she says, appear truncated; "as if it has been removed to accommodate the driveway to the basement". This, she says, is not appropriate to this building type within Bray Street and does not represent a good design outcome.
Ms Pressick also gave evidence that the sloping driveway dictates the location of the entry stair to No. 27, resulting in a balustrade partially located in the alignment of the entry door. As a result of the truncated front verandah, she says that the 3.6m wide garage door, sitting immediately below the sill of the primary window, will be the prominent feature of the façade.
The Applicant's evidence on this issue was given by Jeff Mead. His evidence may be summarised as follows: 1. Mr Mead noted that the experts had agreed that the bulk, massing and modulation of the Proposed Development as well as its street frontage height are acceptable with regard to cl 6.21(4)(d)(v) and (vi). With regard to cl 6.21(4)(a), he says that, except for disagreement in relation to the basement garage, the experts agree that the architectural design, materials and detailing are appropriate. In his opinion, the proposal is consistent with cl 6.21(3). 2. It was Mr Mead's evidence that, whilst it is accurate to say that off-street parking is not "predominant" in Bray Street, "it certainly forms part of the mixed character of the street and area". He points to examples of it at 646 King Street, 28 Bray Street, 33 Bray Street and 50 Bray Street. 3. He says that the Site currently contains a driveway along its western side which provides access to a rear parking area. In his opinion, this arrangement provides a void (or what he describes as a "missing tooth") in the streetscape which is uncharacteristic in the pattern of minimal side setbacks in the locality. 4. Mr Mead's evidence was that the Proposed Development retains a driveway access but improves the streetscape appearance of the Site by providing for a more consistent side setback to the western side. The garaging is designed such that, in his view, it will not be a dominant feature of the front façade. He concedes that the driveway and basement entrance will be seen when viewing the Site from directly opposite but gave evidence that, when a pedestrian moves up or down the street, the driveway and opening will not be a dominant feature given that it will be obscured to varying degrees by built form and landscaping on the subject site and surrounding properties. 5. Even when viewed from opposite the Site, Mr Mead says that the front fence and gate adopt the same design language across the street boundary and believes that, in its closed position, the gate will largely obscure the driveway and basement opening.

[12]

Clause 6.21(4)(b) - whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain

The Council contends that the form and external appearance of the Proposed Development will not improve the quality and amenity of the public domain. However, the expert evidence (both for the Applicant and the Council) does not directly address cl 6.21(4)(b).
Evidence was given by Ms Pressick that the steeply sloping driveway results in an uncharacteristic street setback and, in her view, is not an appropriate interface at ground level between the building and the public domain. Her evidence is that the steeply sloping driveway will dominate the front setback of the property at No. 27 and dictates the design of the entry, stair and balustrade. Furthermore, it results in an uncharacteristically small verandah that is out of proportion with the rest of the façade design.
Ms Pressick's evidence is that the streetscape character in this location typically includes a front verandah to the full width of the front façade as part of the interface with the public domain in Bray Street. A departure from this strong streetscape pattern, on her evidence, should not be granted for the purpose of providing a basement carpark.
While Mr Mead did not specifically address cl 6.21(4)(b), I have had regard to his evidence in relation to cl 6.21(4)(a) (set out above at [40]) and also the Statement of Environmental Effects (Ex A, Tab 8) which at par 5.2.3.1 states that: "Given the high quality design of the proposed development, it will sit comfortably within the streetscape when viewed from the public domain along Bray St and surrounding streets. The development will replace an existing dilapidated dwelling providing an appropriate redevelopment that activates this part of Bray Street. The proposal will therefore enhance the quality and amenity of the public domain surrounding the site."
In oral evidence (Tcpt, 1 September 2021, p 40) Mr Mead downplayed the significance of the driveway and basement garage, saying: "When we bring it back to that, the - my position is that we're talking about a design element of an overall development. And when we look at the overall development, that aspect does not tip the balance to the proposal being incompatible either with the HCA, the more immediate locality, or the streetscape of Bray Street. We need to look at it in totality rather than in this fine lens of - of looking at the basement itself."

[13]

Findings on cl 6.21(4)(b)

For the same reasons set out at [41] to [43], I find that the form and external appearance of the Proposed Development will not improve the quality and amenity of the public domain. The sloping driveway, garage door, truncated verandah and balustrade each contributes to a façade that will be inconsistent with the existing character of Bray Street. I find that the Proposed Development will detract from, rather than improve, the quality and amenity of the public domain.
I do not accept Mr Mead's evidence that the basement garage and sloping driveway do not "tip the balance" in relation to whether the Proposed Development would be out of character with the streetscape of Bray Street and of the HCA. The impact of the basement carpark and sloping driveway on the appearance of the Proposed Development will, for the reasons I have already given, be significant. While the basement garage and sloping driveway may only be one element of the Proposed Development, it is an important element and one that creates a significant adverse impact.
The potential for off-street parking to create such an impact is clearly recognized by the DCP, which contains a number of provisions which demonstrate a clear policy of the Council to discourage garages on, and car access across, the street frontage of development to which it applies. Those provisions include: 1. Clause 3.9.6(3) - the Site is within a heritage conservation area and clause 3.9.6(3) provides that in such an area "infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area". Mr Mead's evidence falls short of saying that garages and car access to the front elevation of buildings are "characteristic of the area", saying that, "Whilst it is accurate to say that off-street parking is not predominant in Bray Street, it certainly forms part of the mixed character of the street and area." The few isolated examples referred to in Mr Mead's evidence (646 King Street, 28 Bray Street, 33 Bray Street and 50 Bray Street) do not truly reflect the character of the street. In this regard, I note that the properties at 646 King Street and 28 and 50 Bray Street are residential flat buildings and, apart from 33 Bray Street, none of the examples include a garage. The garage at 33 Bray Street is on a splay corner with the garage diagonally offset to the west. I find, having regard to the photographs contained in the Applicant's Bundle (Ex H, Tab 4) and those contained in the joint expert report (Ex 3) that Bray Street is characterised by houses that do not have front access and garages. The few examples given in Mr Mead's evidence do not change this character. 2. Clause 4.1.9(3) - this clause provides that excavated basement garages for single dwellings are not permitted unless they can be accessed from a rear lane. The Council concedes that this provision does not apply to the Proposed Development which comprises dual occupancy development rather than single dwellings. However, the provision is part of a recurring theme in the DCP that discourages vehicular access across the main street frontage. 3. Clause 4.1.9(5) of the DCP provides that car access is not permitted across the front boundary for terrace houses or properties in heritage conservation areas. While the Council does not oppose the continuation of at grade access across the front boundary and along the side of the Site, the clause is another illustration of the significance the DCP places on controlling the provision of access across the frontage of buildings in heritage conservation areas. 4. Clause 2.7.5(j) provides that development within the Pleasant Avenue and Macdonald Street Locality (which includes the Site) is to limit vehicular access to lots from rear lanes, where possible. The Site does not enjoy rear lane access. However, the provision is another example of the measures included in the DCP to discourage access to properties across the main street frontage.
Having regard to these provisions of the DCP, I am left in no doubt that it is entirely appropriate to place significant weight on the appearance of the driveway and garage within the façade when considering whether the form and external appearance of the Proposed Development, as a whole, will improve the quality and amenity of the public domain. For the reasons given above, I find that it will not.

[19]

Mr Poulton's evidence

Mr Poulton gave evidence (Ex 3) that the existing house on the Site was built on a double block with a setback on its western side, which has been used as a driveway since at least 1943. This, he says, is not an uncommon feature of freestanding dwellings within the HCA built on wide or double lots with side setbacks which have allowed for driveways. His evidence is that access to car parking in front of dwellings, however, is a more recent occurrence, mainly from the late 20th century onwards and, where it has occurred, relates to buildings that are identified as being either detracting or neutral to the HCA. Where access and garages to the front of dwellings do exist, his evidence is that they detract from the traditional character of the HCA, the cumulative impact of which adversely impacts on its overall significance.
Mr Poulton's evidence is that the proposed driveway and basement car park through the front elevation of the Proposed Development will have a greater impact than the existing side driveway. It will, he says, be out of character with Bray Street and the HCA. Having a steep excavated driveway dropping down into the basement of the building, and with a garage door below the ground floor of the building, on his evidence, would be entirely inconsistent with the street frontage configurations of contributory buildings within Bray Street, and would be incongruous within the HCA. In his opinion, it will not be discrete and hidden behind the fence and gate, as claimed by the Applicant, but will be clearly visible from the street.
Mr Poulton says there would also be flow-on effects resulting from the provision of basement car parking. Instead of having two matching terraces on the Site, No. 27 will have a steep driveway instead of at-grade landscaping, an uncharacteristic partial verandah instead of a full width verandah, and a garage door located beneath the ground floor front window. As a result, his evidence is that the proposed driveway and basement garage door, will not integrate well with the building, streetscape or the HCA.

[20]

Mr Brooks' evidence

Mr Brooks gave evidence that the "primary and ultimate" test of suitability under cl 5.10 of the LEP is whether a proposal will have a negative impact on the heritage significance of the HCA. He points out that the HCA stretches to the north "for quite a few blocks" and that the Site is located at its far southern extremity.
Mr Brooks' evidence is that the single width garage door to the underground parking at 27 Bray Street has been designed: "to match the opacity of the surrounding painted, rendered walls of the building, when closed. Equally the gates to the driveway at the street frontage have been designed to blend into the metal picket style of the fence across the whole site. For the majority of the day and night, both the gates and the garage doors will be closed and only discernible at close inspection from the immediate footpath."
In percentage terms, Mr Brooks believes the visual presence of the proposed driveway will represent only a small percentage of the total streetscape in Bray Street and "only a miniscule percentage of all the streetscapes in the HCA".
Accordingly, Mr Brooks' evidence is that the impact of the driveway and garage doors on the heritage significance "of the entire HCA will be so low as to not warrant refusal of the subject application on heritage grounds".
Mr Brooks agrees with Mr Poulton that other examples of modern infill development in the local area do not represent desirable outcomes for the HCA area but says the heritage design challenge facing the project was to respect the complexity of the existing character and evolution of the HCA, while not replicating the traditional terraced houses that characterise the western end of Bray Street.
Mr Brooks explains that, when faced with the design challenge "to protect the very rare existing on-site parking capacity of the property", within a brief for a suitable infill to replace the extensively dilapidated cottage, the Applicant's project team chose to incorporate a basement garage. This, he says, was intended to: "avoid the disruptive visual and architectural presence of other garages in the HCA that are simply accessed at street level or retain their highly visible, on-grade external surface parking places. As the design developed the idea was progressively refined, culminating in the amended plans that have been prepared as a result of the Joint Expert Conference. In terms of best practice heritage impact management, and in the face of an inability to exclude the existing right of on-site parking, the approach has been one of minimisation and mitigation."

[33]

Does the Proposed Development exhibit design excellence?

Having now considered each of the matters raised by cl 6.21(4), I must decide whether, having regard to all of my findings, I am able to conclude that the Proposed Development exhibits design excellence.
I have come to the conclusion that the Proposed Development fails to exhibit design excellence. Despite Mr Mead's evidence to the contrary, for the reasons set out at [42] above, the Court finds that the proposed basement carpark will have a significant adverse impact on the appearance of the dwelling at 27 Bray Street, such that the Proposed Development will not be in character with existing development in Bray Street and the HCA and would not achieve a high standard of architectural design, materials and detailing appropriate to the building type and location. Consequently, I find that the Proposed Development fails to achieve a high standard of architectural design, materials and detailing appropriate to the building type and location (cl 6.21(4)(a)).
Nor will the Proposed Development improve the quality and amenity of the public domain (cl 6.21(4)(b)). The Proposed Development, because of the driveway and basement car park through the front elevation will be out of character with Bray Street and the HCA. The steep excavated driveway dropping down into the basement of the building, and the garage door in the facade of the building would be entirely inconsistent with the existing streetscape of Bray Street and the HCA.
In terms of cl 6.21(4)(d)(iii), for the reasons set out at [70] to [72] above, the Court finds that the Proposed Development would also result in unacceptable heritage impacts. In particular, the proposed basement parking, associated garage door and sloping driveway will detract from the traditional character of the HCA when viewed from the perspective of Bray Street. As I have noted at [72] above, the basement car park will also produce the undesirable flow-on effects I have there set out. As a result, the proposed driveway and basement garage door will not integrate well with the building, streetscape or the HCA.
The Proposed Development also fails to achieve appropriate interfaces at ground level between the building and the public domain (cl 6.21(4)(d)(xii)). As Ms Pressick said in evidence, the steeply sloping driveway "dominates the front setback of the property at No. 27 and dictates the design of the entry, stair and balustrade". I find that the driveway would result in an uncharacteristically small verandah that is out of proportion with the rest of the façade design, unlike other development in Bray Street which typically includes a front verandah to the full width of the front façade as part of the interface with the public domain in Bray Street.
Finally, the Proposed Development does not demonstrate excellence and integration of landscape design (cl 6.21(4)(d)(xiii)). The proposed sloping driveway removes the possibility for consistent landscaped treatment across the frontage of the Proposed Development resulting in the loss of any opportunity for a well-designed front setback. I find that this prevents the landscape design from exhibiting design excellence.
While the Proposed Development satisfactorily addresses a number of the matters listed in cl 6.21(4)(d), these are, in the Court's view, outweighed by the negative impacts resulting from the incorporation of the proposed basement car parking. My conclusion is that, taking all of the matters listed in cl 6.21(4) into account, I am unable to form the opinion that the Proposed Development exhibits design excellence.

Sekulovska v The Council of the City of Sydney

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Cases Cited (4)