Sophios v The Council of the City of Sydney

Land and Environment Court (NSW)|2018-11-14

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the City of Sydney Council's deemed refusal of Development Application No. DA D/2017/1136 for a boarding house and associated development at 7 Clisdell Street and 16-22 Brumby Street, Surry Hills.

The site and its context

The site is described in Exhibit 1 as having an area of 668.7m², and falls approximately 2.2m along the eastern boundary from south to north. Occupying the site are a group of four, two storey Victorian terrace houses (numbers 16, 18, 20 and 22) facing Brumby Street, a vacant lot at 9 Clisdell Street, and single two storey brick terrace house at 7 Clisdell Street.

Introductory remarks in regard to amended plans

In accordance with the Court's Practice Note - Class 1 Development Appeals, the respondent consent authority (in this case the Council) is required to identify matters that it contends should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. These contentions represent contested issues between the parties and typically become the central point of focus in a hearing.
Following exchange between the parties both prior to and during the period of the hearing, and in particular their experts in conferencing in accordance with the Court's Conference of Expert Witnesses Policy (paragraph 26), the proposal before the hearing was modified considerably from that originally filed with the Court. The particulars are discussed below, where it is also indicated that for the most part the original contentions raised by The City of Sydney Council (Council) in its Statement of Facts and Contentions (Exhibit 1) had been addressed by way of amended plans, which the Court granted leave for use. The only essential point of dispute between the applicant and Council is in regard to parking. There is also an internal dispute among Council experts in regard to materials and finish to the new building fabric which the parties are requesting the Court to adjudicate on.
But in addition it is important for the Court to give consideration to lay submissions, and in this instance a number of such submissions were made by objectors at the site view prior to the commencement of the hearing. The lay submissions raise the following points: building massing (bulk, height, scale), noise, heritage and character, traffic and parking, site management.
We will come to a consideration of the issues after first describing the particulars of the proposal and the relevant statutory provisions.

The proposal

The original Class 1 application (Exhibit E) comprised a 44-room boarding house development, plus accommodation for a live-in manager, basement car park, communal open space and common rooms, demolition of No. 7 Clisdell Street, part demolition and the adaptive reuse of existing terrace houses at 16-22 Brumby Street, Surry Hills.
In conferencing among the experts, and in accordance with the Court's Conference of Expert Witnesses Policy (paragraph 26), alternative physical arrangements to address issues were considered. This resulted in amended plans being prepared by the applicant, with leave granted for their use by the Court (Exhibit A). The application was reduced to 43 rooms.
During the hearing further amendments to plans were agreed between the experts as appropriate, and accepted by the applicant. The particulars were identified during the hearing (by sketch drawings) and included; amendments to the setback of upper levels, materials and detailing to street frontages. The Court directed that the changes be formally documented in further amended plans.

State Environmental Planning Policy (Affordable Rental Housing) 2009

The proposal relies on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP). The aims of the policy are as follows: 3 Aims of Policy The aims of this Policy are as follows: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
Clause 26 of the SEPP establishes that the provisions relating to boarding houses do apply to the site due to its zoning; and therefore the provisions at cll 29 and 30A apply.
Clause 29(1) of the SEPP establishes floor space ratio (FSR) bonuses (in alignment with the stated Aims of the SEPP). For this site a bonus of 0.5:1 applies (that is, over and above any maximum FSR established in the applicable LEP). The SEPP provides that development must not be refused on the grounds of density or scale if the development does not exceed the applicable FSR standard. The proposal's compliance with the relevant FSR standard is not in dispute.
Clause 29(2) of the SEPP provides a further set of "must not refuse" standards involving: height, landscaped area, solar access, private open space, car parking and accommodation size. The parties, and their experts, are generally agreed on these elements. Car parking is the only relevant matter of disagreement between the experts (and parties), but is not a reason to refuse the application.
Clause 30A of the SEPP provides that: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Sydney Local Environmental Plan 2012

The site is zoned B4 Mixed Use under the Sydney Local Environmental Plan 2012 (SLEP 2012). Boarding houses are a permissible development with consent.
Clause 4.3 of the SLEP 2012 provides for the height of buildings. We are satisfied that the amended proposal complies with the permissible height of 15m maximum as shown in the Height of Buildings Map.
Clause 4.4 of the SLEP 2012 provides for the allowable floor space ratio. See discussion on FSR at [13].

State Environmental Planning Policy No.55 - Remediation of land

Clause 7 of the State Environmental Planning Policy No.55 - Remediation of land (SEPP 55) provides for contamination and remediation to be considered in determining a development application. In agreement with Council, the Court considered and accepted the evidence contained in the Heritage Impact Study prepared by Mr John Oultram that use of the site has been residential only and not likely to be subject to contamination.

Public submissions

Three objectors gave evidence at the commencement of the hearing onsite, including a specialist (architect) who acted on behalf of a number of objectors. The parties had made efforts to make the objectors aware of the plan amendments, subsequent to public notification. The Court, in the company of the parties and their experts viewed the site and were invited to visit adjoining properties to inspect the potential impact of the proposal. The objections can be summarised as follows:

Bulk, height and scale

The proposed building height is excessive and would adversely impact on neighbouring properties due to its bulk and scale that is incompatible with the area, and causes additional overshadowing and overlooking - particularly to the communal open space associated with the adjoining property at 8-14 Brumby Street.

Noise

Noise from occupants of the proposed development would be a source of nuisance to neighbouring properties unless appropriate limits are enforced on occupant behaviour; particularly to the communal open space and to the proposed balconies.

Heritage and character

The character of the Brumby Street Heritage Conservation Area would be disadvantaged by the loss of historic building fabric if demolition of the Brumby Street terrace houses is allowed.

Plan of Management

The proposed Plan of Management fails to adequately address the management of smoking on the subject site, and the potential for noise and other nuisance outside of nominated times.

Waste Management

Concerns at on-site waste management related to the increased occupancy of the subject site, and the potential for the regular obstruction of footpaths as a consequence of waste bins stored in the street for considerable periods before and after collection.

Car parking and traffic management

Provision of resident parking on-site is inadequate, and is likely to impose unacceptable impacts on neighbouring properties who suffer from existing deficiencies in on-street parking. Plant, traffic and equipment associated with the construction of the development would further impact on surrounding properties.

Expert evidence

Given the state of general agreement between the parties, the matters raised by objectors become core issues before the hearing. Below we outline the expert evidence in response to these issues and draw conclusions.
The applicant relied on the expert evidence of Mr Lewis Adey (planning), and Mr John Oultram (heritage). The Council relied on the expert evidence of Ms Allison Cronin (urban design), Mr Hui Wang (heritage) and Ms Anna Kaskanlian (planning).
The experts agreed that the amended proposal, tendered by the applicant as Exhibit A, substantially addressed the concerns of the objectors by reducing the bulk, height and scale of the proposal - resulting in a reduction of overshadowing to Brumby Street; and improved privacy and noise impacts to neighbouring properties - particularly to 8-14 Brumby Street by the deletion of balconies, and addition of privacy screens.
The Court is satisfied that the deletion of Room 45 from the fourth floor of the proposal, and the lowering of the height of the building, has the effect of reducing the predominant bulk of the new development.
Expert opinion and objectors shared concerns as to the operations of on-site waste management. Changes incorporated in the amended drawings include the relocation of the Garbage room from the basement - which would have required the manager to transport bins to the Clisdell Street footpath - to the Brumby Street frontage on the proposed first floor; permitting a setback between No.8-14 and No.16 Brumby Street in the former Wheeler Lane, and allowing external access for a commercial waste operator. The Council's planning expert considered the amendment to on-site waste management to comply with the City of Sydney Waste Minimisation Policy for New Developments 2005, and had given regard to the amenity of neighbouring properties.
The experts agreed that the amended proposal, and agreed conditions of consent, substantially resolved the contentions in Exhibit 1, with some exceptions discussed below.

Assessment of objections

We note that there had been some moderation to objector submissions in light of the amended plans. Although it is noted that some serious concerns remained. In this instance we accept the agreed evidence of the experts that the proposal is reasonable in terms of bulk in scale. The proposal complies with the FSR and height controls. In addition the amendments result in reduction of overshadowing to Brumby Street; and improved privacy and noise impacts to neighbouring properties - particularly to 8-14 Brumby Street.
We note the concerns expressed about the effects on outlook from the upper floor unit at 8-14 Brumby Street. However, accept the view of the experts that reasonable efforts have been made to cushion the effects of what is a permissible and compliant development, including through the removal of an upper boarding unit otherwise in that sightline.
In regard to noise and site management more generally, the applicant tendered an amended Plan of Management detailing Manager's Responsibilities, the recording of complaints which is to be available to surrounding neighbours and Council upon request, waste management procedures and the like. We accept the view of the experts that the revised arrangements for waste management provide a significant improvement over that originally proposed.
The parties agreed that original heritage features would be reinstated to the Brumby Street terrace house frontages, including palisade ironwork to front fences and gates; and timber joinery to windows and doors, and that existing building fabric such as chimney breasts, nib walls and the like will be retained.
In regard to parking, we give weight to Council's DCP and Council's policy ambitions in regard to traffic congestion and its relationship to parking. The question of parking is considered further below.

Points of disagreement among the experts

There were two points of disagreement among the experts which the Court needs to make a ruling on. These are in regard to:

Materials and finish to the new building fabric
Provision of the number of on-site car parks (we also note that residents expressed an interest in this issue).

Materials and finish to the new building fabric

The Court was provided with alternative expert views on the most appropriate materials and finish to be used in the construction of new building fabric. Mr Hui Wang relied on the City of Sydney heritage inventory which encourages the use of rendered masonry on new buildings in a heritage conservation area, and pointed to newer developments in Brumby Street that were rendered and painted. Ms Allison Cronin and Mr John Oultram relied on existing buildings in Butt street and in the wider precinct that were face brick or painted brick; on agreed detailing (evident in Sketch A, Exhibit 4); and on the ease of long term maintenance of face brick.
The Court notes that the application is distinctive in the Brumby Street Heritage Conservation Area due to the adaptive reuse of existing terraces that are rendered and painted, unlike more recent developments that do not comprise historic building fabric. Relevantly, the further amended proposal reinstates original features such as palisade fencing to Brumby Street (in Condition 58 of the agreed without prejudice conditions, Exhibit 5), and retains a greater portion of existing historic fabric to the north west corner of No.16 Brumby Street. That the proposal comprises a combination of both old and new building fabric is relevant in considering the most appropriate use of materials and finishes to be applied to new building fabric.
Further, the new building fabric on the Brumby Street frontage will clearly differentiate between the rendered and painted finish of No.8-14 Brumby Street, and the rendered and painted finish to the existing terrace houses of the subject site, between 16-22 Brumby Street.
Clause 30A of the SEPP requires the consent authority to consider whether the design of the development is compatible with the character of the local area.
Clause 3.9.6 of the Sydney Development Control Plan 2012 (SDCP 2012) states that: "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."
We accept the position held by a majority of the experts that new building fabric that is well-designed and finely detailed in face brick is appropriate, and most likely to be compatible with the existing character of the local area.

On-site car parking

The basement plans show provision for 9 car parking spaces to be accessed from Clisdell Street. Four of the parking spaces show car stacker mechanisms. The Applicant submits that the use of car stackers is an appropriate means of providing on site car parking for residents.
The Council submits that, in general, the objectives of the SDCP actively discourages on-site parking of cars where a site is well served by public transport.
We turn to the relevant policy provisions relating to parking before drawing our conclusions.
Clause 29 of the SEPP provides, relevantly: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: … (e) parking if: … (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and
Clearly, the proposal does not trigger this "must not refuse" standard. Given the Council is looking to reduce the parking levels proposed by the applicant, this clause gives little guidance.
It is clear that the position adopted by Council's experts to limit parking to 6 spaces is aligned with the Council policy disposition expressed in its LEP and DCP. While there is no explicit control for this development type in SLEP 2012, we note the relevant objectives of the instrument are found in cl 7.1 - concerned with "car parking ancillary to other development". Reference is made to maximum rather than minimum parking numbers, and the broader principle of minimising traffic generation: 7.1 Objectives and application of Division (1) The objectives of this Division are: (a) to identify the maximum number of car parking spaces that may be provided to service particular uses of land, and (b) to minimise the amount of vehicular traffic generated because of proposed development.
The position of the DCP is usefully outlined at paragraph 1 to Section 3.11 (titled "Transport and Parking"), which provides as follows: "This section contains provisions for managing the transport and parking needs of the city so that the environmental and economic impacts of private car use can be managed. The provisions also encourage walking, cycling, public transport and car sharing."
The first of the listed objectives to this section of the DCP is then expressed as follows: 1. "Ensure that the demand for transport generated by development is managed in a sustainable manner."
Section 3.11.4 then links the DCP and LEP providing as follows: "3.11.4 Vehicle parking (1) Where the development comprises a land use not specified in the Sydney LEP 2012, the proposed rate of car parking provision is to be justified via a Parking and Access Report."
Clause 3.11.12 of the SDCP 2012 addresses the car stacker question and requires a Parking and Access Report be prepared where development includes a mechanical parking installation, such as car stackers, turntables, car lifts or another automated parking system.
We note the Traffic and Parking Impacts Report prepared by TEF Consulting (Exhibit C) is based on a proposal comprising 58 rooms. The report states the site location has very good public transport provision, with Central station and 13 bus routes, with services at high frequency, within close walking distance (of approximately 400m), as well as multiple bicycle routes in the vicinity.
The report is prepared in support of the original proposal (comprising 58 rooms) and nominates 9 car parking spaces for the site. When space for a caretaker is factored in, it would seem the provisioning rate without the stacker is similar to that originally proposed, based on an application comprising 43 rooms.
Our conclusion is to align with the position put by Council experts in regard to parking (provision of 6 parking spaces and deletion of the car stackers). Our reasoning has three principal points to it. First, is the evidence of a general policy position of Council to promote sustainable management of traffic and transport. This is a position which limits parking provision and is encouraging of alternatives to car dependency in locations where there is good public transport access. Second is the fact of the exceptionally good accessibility of transport modes in this particular location. Third is the fact that the rate of provision (6 parking spaces - or in the order of 0.15 spaces per boarding room) seems to be more or less aligned with the original intended parking provision rate and with the Traffic and Parking Impacts report prepared by TEF Consulting which states that "boarding houses are unlikely to generate traffic on a similar scale to typical high density residential developments". The fact of the first two points mentioned above provides the basis of our conclusion that the concern of residents in regard to parking availability cannot be supported in this instance.

Conclusion and directions

For the reasons outlined above, we are satisfied that the amended development is acceptable on merits, subject to the deletion of the car stackers. In our view this is most appropriately achieved through a further minor amendment to plans, and the minor revision of conditions (notably, agreed Conditions 10 and 11 would require deletion). We note that the plans now before the hearing already include face brick finish, as we have endorsed.
The consequence of the above conclusion, and subject to the directions which we will make below, is that the appeal is to be upheld. We now give directions to permit that to occur. 1. Revised settled conditions of consent deleting reference to car stackers (including Microsoft Word version) are to be filed, if practical, within 14 days; 2. Revised settled plans deleting reference to car stackers are to be filed, if practical, within 14 days; and 3. We set the matter down for online Court mention at 12 noon on 15 January 2019 for directions; but 4. If (1) and (2) are complied with, we will make the orders in chambers to grant leave to amend the application, require the applicant to pay costs thrown away, uphold the appeal and give effect to the approval; and we will vacate the mention in (3).

Orders

In accordance with the terms set out in paragraph 59 of our judgment of 18 December 2018, the parties provided the Court with agreed conditions of consent, and amended plans. We are satisfied that consent to the application should be granted, as the appeal is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with our directions. Accordingly we make orders in chambers as follows: 1. Leave is granted to the applicant to amend the application for development consent, by relying on amended plans listed in the Annexure 'A', and subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application (D/2017/1136) for a boarding house development, plus accommodation for a live-in manager, one level basement car park, communal open space and common rooms, and the adaptive reuse of existing terrace houses at 16-22 Brumby Street, Surry Hills, subject to the conditions annexed hereto and marked 'A'. 4. The exhibits, other than Exhibit 1, 3 and C, are returned. ………………………. …………………..... P Walsh & T Horton Commissioners of the Court Annexure A (C) Plans

Amendments 03 January 2019 - Addendum orders made in chambers 2 January 2018 at [60]. 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: 03 January 2019

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