JUDGMENT
1 The applicant in these proceedings is seeking consent for alterations to an existing terrace building and to construct an addition to the rear of the building. The proposal contains 14 residential units. The property is known as Nos. 184 - 86 Bronte Road, Charing Cross, Waverley.
2 By way of background, this S97 appeal under the Environmental Planning and Assessment Act 1979 commenced as a s34 conciliation conference on site under s 34 of the Land and Environment Court Act 1979. The parties agreed that conciliation in the circumstances of this case was not fruitful and that the Court should determine the matter under s 34(4) by way of arbitration. The matter proceeded to a Court hearing and the Court revisited the surrounding area.
3 The subject site contains a Victorian Italianate pair of terraces, and it is noted that they are not heritage items but they are within the Charing Cross conservation area. The site is some 725 square metres, 15.5 metres to Bronte Road and 14 metres to Short Street, with side boundaries in the vicinity of some 50 metres. The adjoining property to the south is No. 188 Bronte Road and is an inter-war three-storey residential flat building.
4 The area can be described as one of a mixture of not only uses but also building types including residential flat buildings and dwelling houses. The subject site has a street frontage to Bronte Road, the main street, and a boundary to a rear street, Short Street, whether that be a secondary access road or whether it is a laneway.
5 The respondent filed a Statement of Facts and Contentions and the issues can be broadly summarized as : visual bulk; loss of outlook; solar access; and the prosed development is not compatible with the surrounding area.
6 On my merits assessment I have determined that the development application should be dismissed because of its impacts on Short Street and that the proposed development at the upper levels would be a dominating element on Short Street.
7 The montages tendered show the adjoining warehouse building, which is some two storeys as a most prominent element in the photograph, however, the part that immediately adjoins the subject site is single storey with a parapet equating to a two-storey development.
8 I note that there are tall buildings in the street in that the school site opposite in Short Street has school premises of some five storeys in one portion. The main part opposite the subject site is a building of perhaps three but the equivalent of a four-storey building in terms of the height, but these elements are set back from Short Street itself. In the streetscape there are two storey elements on the boundary with nil setbacks as well as a number of single storey garages that are within the streetscape of Short Street.
9 Short Street itself has the purpose of serving mainly rear access to many of the residential properties, mixed use development along that section of the block that also has frontage to Bronte Road, as well as serving the school itself and other properties opposite. In my assessment the built form needs to pay respect, not necessarily in total height or in terms of setbacks, but there needs to be an appropriate presentation to Short Street. However, the setback of the proposed development together with its combination of the height would present as a very dominant element within Short Street, which is a narrow street. For the record as provided prior to judgment, it is noted that Short Street is some five metres in width, that is, the total width of the street itself, and the pavement is of a lesser dimension. It is noted that the street provides two-way access to the area.
10 The proposed development is for alterations and additions to the existing terrace dwellings that provide for a most attractive element to Bronte Road. There is no dispute that from a heritage point of view the proposed development will not have any adverse heritage impact and will continue to make, in its refurbished form, a positive contribution to the streetscape of Bronte Road. There is no question in issue here that the application has merit in this regard and the additions to the rear of the building will not be visible from Bronte Road.
11 It is interesting to note that the assessment of the development application by the experts was in many respects based upon the difference between the existing approval of 2004 and the current proposal, whether it be in terms of the statement of environmental effects that was submitted with the development application, or the assessment of the two experts who gave evidence in the proceedings, Mr Spiro Stavis, consultant town planner for the applicant, and Mr Stuart McDonald, consultant town planner for the council.
12 During the hearing I made comment as to whether the above approach is more appropriate to an assessment in terms of s 96 of the Environmental Planning and Assessment Act 1979, rather than a new development application that is the subject of this appeal. I acknowledge, however, that an applicant has a choice as to whether to make a s 96 application or whether to lodge a fresh development application. The parties stated that on the one hand, the proposal may not be substantially the same development in terms of a s96 modification application, and on the other hand if a s 96 application had been submitted, this would have triggered an increased s 94 contribution. These are not matters for me, but rather I must assess the development application before me under s 79C of the Act as a fresh development application.
13 Mr Stavis is of the opinion that the proposed development is appropriate, and, it is noted in the Statement of Environmental Effects, an issue that prompted the development application currently before the Court is the amendments to the council's planning regime. The amendment to the council's planning guidelines, being Amendment No. 4 to the Waverley Development Control Plan 2006 ("DCP"), include new provisions concerning setbacks and frontages to streets and laneways.
14 The subject site is zoned residential 2(c1) under the Waverley Local Environmental Plan 1996 ("the LEP") as amended, and the objectives of the zone are:
"(a) to allow for a variety of medium and high density housing forms including boarding houses, dwelling houses, residential flat buildings, and
(b) to maintain and improve the amenity of the locality ."
15 Other controls or guidelines are contained within the DCP. The Court must also have regard to the heritage provisions that are set out at cl 45. In this regard, the subject development site is within a conservation area and also within the vicinity of heritage items. As noted above I am satisfied on the basis of the heritage report that the proposed development is not contrary to the provisions of the LEP in this regard.
16 Amendment No. 4 to the DCP has been discussed at length between the planners in terms of the new controls and the intent of the controls. In many respects it is a performance-based DCP, and I am guided by Zhang v Canterbury City Council [2001] NSWCA 167 and one does not necessarily regard it as a straight jacket..I must have regard what the provisions or objectives are seeking to achieve and the context in my merits assessment.