Warehouse on Park Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2021-10-13

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal by Inner West Council (Council) of development application DA/2021/0001 (DA). The site is known as 17 Federation Road Camperdown (site) and the DA is for alterations and additions to an existing three and four storey industrial building and a change of use of the building to that of a residential flat building.

Site and context

I mostly rely on Council's Amended Statement of Environmental Effects (Ex 1) for the descriptive material which follows.
The site sits on the northern side of Federation Road between Northwood Street and Northwood Lane. The site is quite rectangular in shape and has an area of some 702.35m2. There is a frontage of approximately 27.43m to Federation Road and some 25.6m to both Northwood Street and Northwood Lane. At present the site is used for commercial and business purposes. There are vehicle entrances to the site off both Northwood Street and Northwood Lane.
The site is opposite Camperdown Memorial Park and Cemetery, with Newtown shopping centre about 400m to the south and Newtown Station about 550m away. Salisbury Road (300m) and Parramatta Road (900m) are located to the near north. Royal Prince Alfred Hospital is about 800m to the east with Sydney University immediately beyond it. The locality consists mostly of one and two storey terrace houses. As discussed in evidence there are heritage conservation areas and items in the site vicinity.

Proposed development

The DA comprises the adaptive reuse of the building occupying the site. It involves internal works, including the addition of floor area, to provide for 28 residential apartments over five floor levels. A number of the apartments involve a split level configuration. External alterations include new openings and fenestration, with the relocation of the main entry to an at-grade arrangement at the Federation Road elevation. Underground parking is proposed (16 motor vehicle spaces including five spaces for persons with a disability, 24 bicycle spaces and 1 motorcycle space) with access via Northwood Lane. The DA proposes certain works on Council's road reservation (certain juliet balcony fixtures and landscaping works) which are discussed in the consideration of evidence.

Key statutory considerations

The site is zoned R1 General Residential under the Marrickville Local Environmental Plan 2011 (MLEP). The zone objectives are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Residential flat buildings (RFBs) are permissible with development consent in the zone.
Clause 5.10 of MLEP is concerned with heritage conservation. Clause 5.10(4) provides, in part, 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 item or area concerned.
The site is not a heritage item, nor is it within a heritage conservation area. There is no dispute that cl 5.10(4) does not apply. However, heritage is otherwise prominent in Marrickville Development Control Plan 2011 (MDCP) and a consideration in Council's contentions. Expert evidence is considered below.
Clause 6.9 of MLEP relates to the conversion of industrial or warehouse buildings to, relevantly, residential flat buildings in residential zones, such as proposed here.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal.
MDCP also arises in matters other than heritage and is consideration of the evidence.
Council also referenced Draft Inner West Council Local Environmental Plan (DIWLEP) which has been placed on exhibition and is thus a consideration under s 4.15(1) of the EPA Act. Relevant excerpts are provided in Council's bundle (Ex 3 behind Tab 8) and I have given consideration to these matters. I accept Council's advice that DIWLEP doesn't propose changes significant to the matter before me here.

Hearing proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, issued December 2021. After a site inspection (which included an inspection of a number of nearby examples of adaptive re-use of older industrial buildings) and the hearing of submissions from objectors, the hearing was conducted as a virtual court room using the Microsoft Teams platform.
Those providing expert evidence in proceedings are as follows: Name Expertise For R Dickson Urban design and architecture Applicant V Lakhia Urban design and architecture Council J Oultram Heritage Applicant R Moore Heritage Council C Palmer Traffic and parking Applicant M Isac Traffic and parking Council G Chapman Town planning Applicant M Di Maggio Town planning Council T Aubosson Acoustics Applicant

Issues

Council's overriding submission is that the proposal constitutes overdevelopment of the site. The matters remaining in dispute after amendments to the application fall into six main topic areas, as listed below. I explain more fully when each topic is addressed.

Adaptive re-use (as a prevailing consideration linking into other topics);
Heritage conservation and associated considerations;
Internal amenity and public domain interface;
Parking;
Public domain works;
Other objector concerns.

Adaptive re-use

It has been indicated that cl 6.9(4) of MLEP establishes certain, what might be thought of as, beneficial provisions relating to the conversion of industrial buildings to RFBs (see [10]). This is through the non-applicability of height and FSR provisions. Clause 6.9(3B) establishes certain jurisdictional cautions, as follows: In determining whether to grant development consent under this clause, the consent authority must consider the following - (a) the impact of the development on the scale and streetscape of the surrounding locality, (b) the suitability of the building for adaptive reuse, (c) the degree of modification of the footprint and facade of the building.
Council believes the proposal has not demonstrated the suitability of the building for adaptive reuse due essentially to what it sees as: (1) unsatisfactory conservation of significant aspects of the building (both external and internal and in relation to the existing building's materials and rhythmic and spatial qualities), and (2) the low internal amenity which would be available to future residents after its adaptation.
In my view, the examination of these concerns is best dealt with when dealing with the more explicit topics of heritage conservation and internal amenity which I turn to, in turn, now.

Heritage conservation and associated concerns

The contention is that there are excessive and detrimental interventions to the building's existing facades and envelopes which, among other things, will result in an adverse visual impact on the heritage significance of the Hopetoun-Roberts-Federation Streets heritage conservation area (HCA) just west of the site, and the North Kingston Estate HCA just south of the site; the latter encompassing St Stephen's Church of England and Cemetery, an item listed as of State heritage significance under MLEP.
The nominated "particular aims" of MLEP (cl 1.2) raised in Council's contentions, as being of concern, are: … (g) to identify and conserve the environmental and cultural heritage of Marrickville, (h) to promote a high standard of design in the private and public domain
The suggested lack of conservation of important characteristics of the building is also seen to be inconsistent with MDCP. There are a number of MDCP provisions raised by Council. I will introduce them here and reference them in more detail when considering the evidence.
While acknowledging that the site is not listed as a heritage item and does not fall within a HCA, Council points to various MDCP which apply, nonetheless. Part 8 of MDCP is concerned directly with the topic of heritage, and provides an explanation of intent, through its objectives at Part 8.1.1: "O1 To conserve heritage items and maintain appropriate setting and views. O2 To retain evidence of historic themes of development evident in the Marrickville LGA, through the proper care and maintenance of individual heritage items, HCAs and period buildings. O3 To provide guidelines for alterations and additions which complement and do not detract from the heritage significance of individually listed heritage items, HCAs and period buildings. O4 To protect those items, areas and buildings of value to the local community. O5 To encourage new development which complements existing heritage items and heritage conservation areas in a modern context."
Part 8.1.4 notes the large number of "historical buildings" in Marrickville which are seen to help define its character. As I read it, this section of MDCP distinguishes between two particular types of these historical buildings, namely: "contributory buildings" and "period buildings", which are defined as follows: "Contributory buildings are buildings, not listed as heritage items, that are located within a heritage conservation area that make an important and significant contribution to the character and significance of that heritage conservation area. They are buildings that have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area. Contributory buildings are buildings from a key period of development that are either: • highly or substantially intact; or • altered, yet recognisable. Period buildings are buildings, not listed as heritage items, which are not located within a heritage conservation area, which are generally intact that make a positive and valuable contribution to the character of the streetscape and broader townscape."
Clause 6.7 of MDCP then specifically relates to "period industrial buildings", with nominated objectives are as follows: "O53 To ensure alterations and additions to warehouse/factory buildings do not compromise their structural integrity or robust architectural character. O54 To retain significant fabric and some ability to interpret original spatial qualities (for example, at the entrance area and in wider than usual circulation spaces). O55 To maintain the contribution warehouses and factories make to an area's character through their characteristic form, massing, scale, proportions and materials."
Clause 6.4.3 of MDCP is concerned with the "conversion of existing industrial and warehouse buildings in residential zones". The objectives of the clause are: "O42 To provide for the adaptive reuse of existing industrial buildings and warehouse buildings to residential flat buildings, multi dwelling housing, and office premises. O43 To ensure that the impact of the conversion on the amenity of existing and future residents is considered in assessing the development."
Council also pointed to certain controls, under cl 6.4.3, as follows: "Before granting consent for development referred to in this section Council must take into consideration such of the following matters as are of relevance to the proposed development: … vi. The heritage aspects of the existing building; … viii. The building's suitability for conversion; ix. The structural adequacy of the retained factory or warehouse building and the impacts of any demolition works proposed, and any engineering works required during demolition and construction to ensure the retention of the retained sections of the building;" …

Evidence

Mr Moore believes the proposed changes to both the building's exterior and interior fail to take proper account of the building and its setting (Ex 6 p 8): "The changes to (the building's) facades, generated by a design attempting to give amenity to apartments sought in the lower areas of the building and the roof, demean its design and destroy its hitherto enduring architectural relationship with its setting and context. The character that results will be obtrusive and disruptive of the present aesthetic and visual amenity of the locality, enjoyed by its residents. The balconies and openings proposed have nothing to do with its character and their introduction will lose what has largely endured since this building's construction - a strong distinctively industrial character, becoming increasingly rare. Similarly the treatment of the interior of the building chooses not to capitalize on the building's internal warehouse character, of larger spaces and massive post and beam construction normally synonymous with such conversions. It does this to cram in more apartments, to the belittlement of the interiors. The exposure of the proposed lower apartments in the building, open to the street through the proposed new openings, will be uncharacteristic of the current residential context and adverse in impact upon the existing amenity."
Mr Moore's concerns include:

The design confuses form and character, through disrupting both interior and exterior, to the extent that it would not be "recognizably of its current, significantly original character" (Ex 6 p 10).
Proposed uncharacteristic windows, balconies and dormer windows are unacceptable and would have a "trivialising" effect, resulting in the loss of the strong distinctively industrial character of the building.
The interior design chooses not to capitalise on the internal warehouse character in response to the proposal's ambitions to maximise the number of apartments.
Views into the apartments from the street (from proposed new openings) will be uncharacteristic and adversely impact on local amenity.

Mr Moore saw the proposal as inconsistent with the aims of MLEP nominated at subcll 1.2(g) and (h) (see [21]). He referenced a number of provisions of MDCP, noting in particular the important intent of Objective O55 to Part 6.7.2 (see [25]) and arguing that this objective is not achieved because of the extent of change, its interference with the building's design elements and the severity of impacts on the characteristic aspects of the building (Ex 6 p 14).
Mr Moore believes there is an important judgement required in regard to the buildings significance and character (including in regard to the application of certain other provisions in Part 6.7.2 of MDCP). He sees it as unreasonable to make the conclusion that the building has been adjudged as not reaching the threshold of heritage listing. This is because there appears to be no record of the building's assessment. Mr Moore believes, having observed the building and reviewed the heritage assessment undertaken by Mr Oultram, that: (Ex 6 p 10) "…the building is worthy of a local heritage listing, by reason of its historical background, its aesthetic significance in its locality, and its important representative values as an example of such a smaller scale, industrial building in a largely residential context."
Mr Oultram does not see the building as having particular heritage importance and sees it as a "quite modest example of its type" (Ex 6 p 9). He sees the building as a prominent feature in the local setting which does make a positive contribution to the streetscape, consistent with the definition of "period buildings" contained in MDCP. He observes that the building "has not been assessed by Council to reach the threshold for listing as a heritage item using the standard methodology outlined in the NSW Heritage Manual (ibid).
Mr Oultram believes the existing form and detail of the building will remain readable. New openings would be arched and "robustly detailed (and) set between the current window reveals and reflect the simplicity and robustness of the current façade" (Ex 9 p 14). The new openings can serve the purpose of providing solar access, of importance in amenity terms for future occupants, while allowing the retention of "brickwork piers and gables" (ibid).
In regard to interiors, Mr Oultram indicates that the ground floor would be removed (which allows for access for people with disability) but that at the upper floor levels, timber floors and structure including beams and joists and roof structure will be retained and exposed within the apartments.

Consideration

As a starting point in the consideration of this topic I turn to Mr Moore's suggestion on the need for a decision on the buildings significance and character. It is an important fact, in my view, that the building has not been listed as of particular heritage significance in MLEP, through the usual manner (ie inclusion as a heritage item). While Mr Moore believes the building warrants listing as of local heritage significance, and has not found any record of its evaluation in Council's records, it does seem odd to me that a building of such (agreed) prominence would be missed in heritage evaluation exercises. I am more inclined to Mr Oultram's view, which is that the non-heritage listing of the building reflects its status, or the limits to its contribution in heritage conservation terms.
The building does have status as a period building under MDCP. When I look at the definition of period building at Part 8.1.4 (see [24]), I note that general intactness is a factor but the focus of value is more in relation to its contribution to "the character of the streetscape and broader townscape", and less in relation to its heritage conservation contribution (when compared to "contributory buildings" for example). In general, this makes sense given that period buildings are not located in heritage conservation areas, areas identified for particular attention in that regard. In this instance, of course, the proposal does adjoin two HCAs which warrants consideration in merits evaluation.
When I turn to the merits, it is noteworthy that, prima facie at least, the proposed development does respond to a number of nominated controls for period buildings in Part 6.7.2 of MDCP. As noted by Mr Oultram:

Control C102 says that buildings not assessed as having heritage significance can accept a greater degree of physical intervention internally and externally.
Control C101 would seem to open the door to small balconies as proposed here, with some conditions, which seem to have been generally accommodated.
Control C105 requires retention of floor levels but does allow insertion of new floor levels where floor to ceiling heights permit and BCA requirements are met, as is argued to be the case here.

In closing submissions, Council noted it was the lower levels of the building which were of greatest concern, and I agree. The main question for a period building, such as this, is whether, with this development, the building would continue to make a positive and valuable contribution to the character of the streetscape and broader townscape, or whether due to the extent of changes to the external façade (and views into the building), something of significant current value is lost or diminished.
It is my conclusion that the building is suitable for adaptive reuse and the proposed alterations and additions would not unreasonably diminish the building as a character item in its streetscape or wider setting. I agree with Mr Oultram that the proposal largely accords with the relevant MDCP controls for period buildings, and that the most significant aspects of the building would be retained. The changes do not detract unreasonably and the form and significant detail of the historical building would remain readily readable. I also accept Mr Oultram's evidence, essentially based on the above findings, that the changes would not distort the current relationship with adjoining HCAs.

Internal amenity and public domain interface

This topic involves the internal design of the proposed apartments and facilities available for occupants. It is concerned with the amenity that might be enjoyed by future occupants within apartments, the proposed communal space and also how the proposed development interfaces with the public domain (including in regard to informal surveillance and in the provision of opportunities for social interaction). According to Council, the design problems in this regard were directly related to the application seeking to fit too much development into the existing building. This was seen to be at odds with MLEP's aim relating to the promotion of a high standard design (cl 1.2(2)(h)). The specific concerns which remained in regard to this topic, after the filing of amending plans, were:

Low internal amenity for future occupants and poor public domain interface, especially in regard the proposed design interface with Northwood Lane and the proposed internal ceiling heights.
Inadequate response to communal open space requirements.

Apartment amenity and public domain interface

Council is concerned that the ground floor interface with the surrounding streets, and the laneway, creates potential visual privacy concerns for Apartments G01, G02, LG01, LG02 (each fronting Northwood Lane) and G03, LG03, LG04 and I believe UG10 (each fronting Northwood Road). Of particular concern is that important living areas within Apartments G01 and G02, each a split level form, would be located below the natural ground level of the public domain. There was a concern, also, that there would be a direct line of sight from the street to certain open (upper level) bedrooms in split level apartments.
While I have had regard to the objectives of clause 6.4.3 of MDCP, most attention was given to the Apartment Design Guide (ADG), a reference document to SEPP 65, when this issue was examined. Points of relevance included Section 3C in relation to "public domain interface" and Section 4C in relation to "ceiling heights". Section 4L ("ground floor apartments") and 4R ("adaptive reuse") also came into attention.
I note Mr Dickson's reference to Section 3C of the ADG which, after some explanatory material, provides a suite of four diagrams at Figure 3C.1, showing configurations of building interfaces with the public domain. Mr Dickson's written evidence indicated the proposal was consistent with these diagrams (Ex 7 p 10), when in fact, none of the configurations shown in four diagrams in Figure 3C.1 were similar to what the proposal intended in regard to public domain interface (something agreed by Mr Dickson in cross examination). These Figure 3C.1 diagrams depicted either the proposed ground floor above the street or level with the street; and in the latter case, including some form of spatial or landscape based separation between the proposed building and the public domain. With this proposal, the existing building is essentially built to the public domain boundary, with existing and proposed windows and living areas generally abutting this boundary, albeit noting that for some apartments (LG01, LG02, LG03, LG04, G03, G04, UG10) small courtyards or wintergardens are proposed at the street interface.
The ADG objectives relating to public domain are multifaceted. Objectives 3C-1 and 3C-2 are cited below: "Transition between private and public domain is achieved without compromising safety and security Amenity of the public domain is retained and enhanced"
These objectives also link to the provisions at the ADG's Part 4L ("ground floor apartments"). Objectives 4L-1 and 4L-2 are cited below: "Street frontage activity is maximised where ground floor apartments are located Design of ground floor apartments delivers amenity and safety for residents"
Apartments G01 and G02, sitting mostly below the street level, would be at odds with the second point of design guidance in respect of the ADG's Object 3C-1 provides as follows: "Changes in level between private terraces, front gardens and dwelling entries above the street level provide surveillance and improve visual privacy for ground level dwellings (see figure 3C.1)."
Mr Lakhia's concerns relating to floor to ceiling heights evoked a similar theme. The complexity of the structural aspects of the adaptive reuse, including additional floor levels, and necessary utility inclusions, reduced the effective ceiling heights. According to Mr Lakhia, the ambitions for another floor level meant that the ADG objectives in regard to floor to ceiling heights would not be met (Objectives 4C-1 and 4C-2 are cited below): "Ceiling height achieves sufficient natural ventilation and daylight access Ceiling height increases the sense of space in apartments and provides for well proportioned rooms"
On this matter I was taken to Drawing DA 411 (Ex G), in particular, which provided examples of incursions into what might be thought of as the available floor to ceiling height. Height details for Apartments LG01 and UG03 were provided. Living areas in these apartments would have a total floor height of 2.59m to the underside of an exposed timber floor joist (Apartment LG01) and 2.66m to an existing timber beam (Apartment UG03) upon which sat a line of timber joists before the ceiling was reached.
In both Mr Lakhia's evidence and Council's submissions, the case was put that there was a capacity for the proposal to more closely accommodate the objectives, design guidance provisions and diagrams as shown in the relevant sections of the ADG. It was acknowledged that this would involve reduction in the available space for the apartments, but the proposal was prioritising yield over appropriate design response.
Overall, I prefer the evidence of Mr Dickson in regard to the matters at hand. Clearly the proposal does not align with some of the drawn representations in the ADG, but the site is idiosyncratic, as an adaptive re-use, and it cannot be expected that all the circumstances that arise in such a project could be covered in ADG drawings. More importantly, it seems to me that Mr Dickson is right in his conclusion that the proposal meets ADG objectives relating to internal amenity and public domain interface. In regard to the latter, it is clear there would be an enhancement to the public domain interface as a consequence of the observed activity within the apartments (at all levels). While sometimes these "views-in" will be filtered, or elective on the part of occupants (as necessary for privacy), there is a significant overall improvement to the street setting's visual interest, and public surveillance availability, when compared to the existing situation. Some of the apartments have direct access to the street and small courtyards which provides a new platform for social interchange
It is also clear that detailed design inclusions, through visual screens, can provide for sufficient visual privacy for occupants. That is not to say that all is perfect. Mr Lakhia is right that the outlook from the apartments is sometimes a negative. Views from the lower level western apartments to the west will often be to cars parked very close to the building (and window) line, as there is only a narrow footpath. In regard to certain factors, such as this, which tend to decrease amenity, I agree with Mr Dickson that it can be expected that occupants of inner city apartments such as those proposed here will respond by making their own decisions in regard to additional furnishings and other inclusions to address problems and optimise positive aspects.
I acknowledge Mr Lakhia's concern in regard to floor to ceiling heights but it appears that in each instance the measurement to what might be thought of as the actual ceiling level exceeded 2.7m, the height nominated in the design criteria under Objective 4C-1 of the ADG. The split level apartments do have an openness and access to light which seems to me to show a good design response.
Further in regard to SEPP 65 generally (mindful of cl 28), in addition to the ADG, I have also taken into consideration the design quality of the development when evaluated in accordance with SEPP 65's design quality principles (provided at Schedule 1 to SEPP 65), noting the design verification statement provided on behalf of the Applicant (Ex J).

Communal space

Objective 3D-1 of the ADG provides as follows: "An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping"
Under the first design criterion to this objective, a minimum communal open space of 175.5m2 would be provided (25% of site area). No communal open space is provided, at all. Mr Lakhia acknowledged that Camperdown Memorial Park was adjacent to the site and the fact that the proposal constituted an adaptive reuse of an industrial premises. He concluded that an internal community space of about half the above calculated area (of around 85m2) would be sufficient should the space have good solar access. It would be "a valuable 'breathing space' for wellbeing of residents" (Ex 9 p 5).
The proposal before the Court includes a communal area of some 47m2 including its outdoor terrace area, sited on Level 2 on the northern side of the building. The room is shown to accommodate some gym equipment, lounge chairs and a servery. There would be good solar access.
Mr Dickson referred to the "design guidance" points under Objective 3D-1 of the ADG, which include: "Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should: • provide communal spaces elsewhere such as a landscaped roof top terrace or a common room • provide larger balconies or increased private open space for apartments • demonstrate good proximity to public open space and facilities and/or provide contributions to public open space"
I again prefer the evidence of Mr Dickson, who emphasised the accessibility of Camperdown Memorial Park, and a number of other nearby parks and saw that the amenity needs of future occupants were adequate addressed with the small communal area, given the distinctive locational advantages. It seems to me the "breathing space" needs of future occupants are sufficiently well served with the quality of the park immediately across Federation Road, the Kings Street Newtown facilities nearby and the proposed communal room.

Parking

Council pressed two issues concerned with parking following the filing of amending plans. These related to: (1) the undesirability of the car parking stackers and (2) the undersupply of accessible spaces.
In regard to the first concern, MDCP (Part 2.10.10) "discourages" the use of mechanical car stackers. The reason cited for this is "because of previous experience with stackers malfunctioning and therefore failing to provide the required parking provision".
It is clear that mechanical car stacking is a common enough occurrence today but, in these proceedings at least, there was little in the way of direct evidence provided of malfunctioning stacker devices. Mr Palmer gave sworn evidence of his experience over many years which to him demonstrated that stackers were a reliable technological innovation. With this in mind and given the conditions of consent requiring the maintenance of the car stacker in good working order for the life of the development, I am satisfied with the proposed mechanical car stacker arrangement.
The proposal provides for five accessible parking spaces whereas Control C8 in Part 2.5.8 of MDCP (which applies Part 2.5.10) would require six such space (these spaces do not involve the car stacker system). MDCP's objectives in relation to "equity of access and mobility" are at Part 2.5.1, as follows "O1 To provide equitable access within all new development, and ensure substantial alterations to existing development, or an intensification of an existing land use, provides an improved level of access for all people. O2 To protect existing accessible features within the public domain, residential development and non-residential development. O3 To significantly increase the supply of adaptable housing. O4 To provide an adequate supply of car parking facilities for use by people with a disability. O5 To make people aware of their responsibilities under the Disability Discrimination Act 1992 (Cth) (DDA). O6 To raise public awareness and understanding of access and mobility issues for people with a disability through investigation and promotion of best practice in the design, construction and operation of development."
Mr Palmer believed that five accessible spaces would meet the expected demand from the development. He, in part at least, relied on an "access statement" prepared by a company called Code Performance and included as Annexure 3 to a Joint Report prepared by traffic experts and filed on 18 January 2022 (Ex 17). The Code Performance statement indicated (and I don't believe it was in dispute) that MDCP would require 20% of apartments to be adaptable and that each adaptable unit be provided with an accessible car parking space. The Code Performance statement argues a number of points including that: "not all people with disabilities require an accessible carspace", and "not all people in adaptable units have disabilities". It was further argued that based on Australian Bureau of Statistics figures "(a) maximum of 32% of people with disabilities may have a mobility impairment that may require accessible parking". In turn it was estimated that a maximum of 50% of adaptable unit owners/occupants have a disability.
While I note this advice of Code Performance, prepared on behalf of the Applicant, there are serious societal ambitions at hand in regard to ensuring people with a disability (including those with mobility difficulties) do not have opportunity constrained unfairly or unreasonably. The Code Performance statement was not subject to testing in Court, nor was there evidence provided from what might be thought of as advocates of persons with a disability. Here I am indicating my understanding of the facts rather than suggesting fault in any direction, and signalling that I would have more comfort on this topic were it more fully ventilated. As it stands, I find the provision of accessible parking as a negative aspect of the proposal, although it will be seen not determinative in this instance.

Public domain works

Two aspects of the proposal involved work within the confines of public road reservations.

Northwood Street landscaping

The plans before the Court show a number of reasonable sized landscape plots (mostly about 1.5m x 3m) within the Northwood Street road reservation, along the building line. The Applicant said there was an altruistic intent to this (recognising the general beneficial effects of landscaping in built up urban settings of this kind and also the other examples of street-side landscape plots nearby). There was also no doubt that this landscaping could help in filtering views into Apartments G03, LG03, LG04 and UG10. Council argued against this aspect of the proposal, raising concerns in regard to maintenance and drainage and impediments to pedestrian movement. While the Applicant had responses to each of these items, in general, I would think it appropriate for the Council to have carriage of decisions of this kind and I will not be making orders to allow the use of the Council's road reservation for landscaping purposes without its consent in this instance.

Juliet balconies

At selected window openings along Federation Street (although a little enlarged), the plans provide for three, twin juliet balconies. This would occur on each of the upper two levels. Four twin windows would remain at each of these two levels, that is to say, unadorned by balconies. No balconies are proposed at the window openings at the lowest level of this façade. For the Northwood Street façade there would be two twin juliet balconies at existing window openings at the middle level. But, as well, there would be two new larger balcony openings, in each of the middle two levels of the new construction at the northern end of this façade. The Northwood Lane façade also has a bank of these larger balcony openings at the western end for three levels above the ground level. Two other twin balconies are located in the middle of the façade, essentially occupying existing window openings.
Mr Moore was concerned that the balconies had no association with the existing industrial character. The building's presentation and fabric would be changed for the worse as a consequence, he believed. Mr Oultram noted that MDCP provided support for openings of this kind.
The MDCP objectives for period industrial buildings (Part 6.7) have been introduced above. I cite the controls, selectively as to relevance on this, below: "C101 In the case of warehouses or factories of lower levels of heritage significance, lightweight balconies, canopies and sun shading devices may be affixed to the facades as long as there is a clear distinction between the original solid masonry fabric, the contemporary attachment and the robust masonry character, and the regular pattern of openings remains dominant. …"
There are then a series of "design guidelines" (which "do not form part of the adopted DCP") at Part 6.7.3 of MDCP, along with some sketches. Again I cite selectively: "… 2. Small scale lightweight balconies may be added to the sides and rear of a warehouse building when it is adapted for residential or commercial uses, so long as the original overall form of the building is dominant and its important structural and facade elements can be readily seen (B)." … Figure 1 - Diagram "B" referenced in second point in Design Guidelines at Part 6.7.3 of MDCP
The "balancing act" involved is also captured in Part 4R of the ADG (concerned with adaptive reuse) where it is put that: "Non-residential buildings often have dimensions, layouts and orientations that are not designed for residential use. A balance must be achieved between the benefits of retaining existing buildings versus the quality of residential amenity that can be achieved."
It seems to me that juliet balconies, as proposed here, generally align with the intentions of Part 6.7 of MDCP in regard to adaptive reuse of period industrial buildings. The extent of these small balconies is not so great as to effect the strong masonry character of the existing building and the regular pattern of openings would remain dominant. The period industrial building would continue to contribute positively to local streetscape character with the balconies as proposed.
In more general planning terms, the juliet balconies would also make a positive contribution to street activation. However, some risk exists of privacy intrusion for properties backing onto Northwood Lane. The planning experts had an agreed position that the proposal was satisfactory as to visual privacy (Ex 7 par 11). I agree with the experts in regard to overlooking from the upper level balconies (Apartments 201, 205 and 206), which include planter boxes to mitigate against overlooking. Mindful of Objective O43 of Part 6.4.3 of MDCP (see [26]), I remain concerned about the amenity impact of the proposed juliet balconies in regard to the low density residential properties backing onto Northwood Lane. The balconies shown for Apartments UG05, 107, 101 and 102 are not supported. In the draft conditions filed in regard to this matter (without prejudice on Council's part), the parties allowed for a pathway for development approval with or without the juliet balconies. This has allowed for the ready drafting of a condition that requires revised plans (for construction stage) which excludes the juliet balconies for the above nominated apartments.
The juliet balconies would encroach onto Northwood Street and Federation Road. Council has not issued owner's consent for such works. Under s 39(2) of the Land and Environment Court Act 1979, the Court has power to grant owner's consent for the lodgement of the development application for this purpose. Given my conclusions in regard to the merits of the juliet balconies on these two building facades, it is appropriate for the Court to grant owner's consent for the proposal insofar as it includes the Federation Road and Northwood Street road reservations. There is still a need for the execution of a lease under s 149 of the Roads Act 1993, which includes approval of the Secretary of the Department of Planning and Environment. The conditions appropriately reflect this.

Other community objections

Mindful of s 4.15(1)(d) of the EPA Act, I have given consideration to oral and written submissions from objectors. A number of the objections aligned with Council's contentions, as considered above. Below I nominate other key concerns and provide responses.
Insufficient parking and potential queuing problems in Northwood Lane: I note the proposal now satisfies Council's overall parking requirements and that the traffic experts agree that modelling indicates that Northwood Lane queuing to access the basement parking is adequate when evaluated against the applicable standards.
Acoustic privacy: A particular point of attention raised in submissions was in relation to the proposed car stacker system, given its close proximity to residential dwellings (immediately adjacent to the north). While Council indicated that it was generally satisfied with the acoustics of the proposal based on the evidence tendered, I sought further specific evidence in regard to the stacker. The applicant called Mr Aubusson, an acoustic expert, to provide further evidence. This was provided through a short written report (Ex O), and orally during the course of proceedings. This provided me with a chance to better understand what acoustic standards were applicable (not only but, in particular, in regard to sleep disturbance), what mitigation would be able to be employed in the mechanics and operation of the stacker and what assurance systems were available. It was, for example, important that there be some truth testing of the acoustic performance of the stacker before any occupation certificate was issued; and that this include testing at receiver end (if access were allowed). Ultimately I am satisfied that with the proposed conditions of consent, appropriate safeguards are in place in regard to the proposed car stacker system (Conditions 32, 50, 50A) (I mention here that I added a specific requirement for evidence by way of a registered letter, in the event that access cannot be obtained to undertake this pre-occupation certificate acoustic measurement, consistent with the approach adopted in regard to dilapidation report inspections (eg Condition 24)).
Encroachment of the proposal onto adjoining land: a condition of consent is included to prevent any works on adjoining land (Condition 2A(g)).
Visual privacy and overlooking: considered at [73].

Conclusion

Based on the above evaluation, the proposed development is acceptable in the circumstances of the case with conditions as generally agreed between the parties (without prejudice on Council's part).
The orders of the Court are: 1. Owner's consent is granted with respect to the lodgement of the development application in regard to proposed juliet balconies encroaching onto Northwood Street and Federation Road as particularised in the plans and other conditions referenced at Annexure A. 2. The appeal is upheld. 3. Development Application No. DA/2021/0001 for alterations and additions to an existing building and change of use to a residential flat building including 28 apartments, with parking and associated works at 17 Federation Street Camperdown, is approved subject to the conditions at Annexure A. 4. The exhibits are returned except for Exhibits 1, 14, A-C, F-H, M and R.

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: 22 February 2022

At a glance

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Judgment (20 paragraphs)

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