Land and Environment Court of New South Wales CITATION : SCEGGS Darlinghurst Ltd v South Sydney City Council [2001] NSWLEC 111 APPLICANT SCEGGS Darlinghurst Ltd PARTIES : RESPONDENT South Sydney City Council FILE NUMBER(S) : 11081 of 2000 CORAM: Pearlman J KEY ISSUES: Development :- demolition - character - streetscape - heritage impact - zone objectives - views - noise - visual privacy Development Control Plan 1997 - Urban Design LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney (Heritage Conservation) Development Control Plan 1998 South Sydney Local Environmental Plan 1998 CASES CITED: DATES OF HEARING: 19/04/2001, 20/04/2001, 23/04/2001, 24/04/2001, 26/04/2001 DATE OF JUDGMENT: 06/05/2001 APPLICANT Mr J A Ayling (Barrister) SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Mr S N Griffiths (Solicitor) SOLICITORS Pike Pike & Fenwick JUDGMENT: Contents Section Paragraph Number Introduction 1 to 3 The site and its surrounds 4 to 6 The proposed development 7 to 8 The relevant planning controls 9 to 22 Evidence 23 to 29 Issues 30 Issue 1 - Demolition 31 to 37 Issue 2(a) - Character 38 to 45 Issue 2(b) - Streetscape 46 to 47 The south western coner of the building 48 to 52 Pergola 53 to 59 Carpark wall 60 to 63 Display panels 64 to 66 Streetscape generally 67 to 68 Issue 2(c) - Quarry Wall 69 to 75 Issue 3 - The Masterplan 76 to 80 Issue 4 - The Residental 2(b) zone 81 to 90 Issue 5 - Passive surveillance/active street frontage/public domain 91 to 99 Issue 6 - Thomson Street 100 Views 101 to 104 Noise 105 to 108 Heritage impact 109 Visual privacy 110 to 113 Conditions of consent 114 to 128 Orders 129 IN THE LAND AND 11081 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 5 June 2001 SCEGGS DARLINGHURST LTD Applicant v SOUTH SYDNEY CITY COUNCIL Respondent JUDGMENT Introduction 1. This is a class 1 appeal against the deemed refusal by South Sydney City Council ("the council") of a development application made by SCEGGS Darlinghurst Ltd in respect of its school property known as No 215 Forbes Street, Darlinghurst ("the site"). The development application relates to the re-development of the SCEGGS primary school. 2. I have concluded for the reasons which I have set out below that development consent should be granted subject to conditions. 3. I record that I was assisted in this appeal by Commissioner Brown, and that I had the benefit of an inspection of the site and the surrounding area. The site and its surrounds 4. The site has frontages to Forbes Street, Bourke Street, St Peters Street, St Peters Lane, Thomson Street and Thomson Place. It has an area of approximately 12,676 m2 and currently accommodates the SCEGGS Darlinghurst primary and secondary schools. 5. The buildings presently associated with the primary school are located on the Bourke Street frontage and comprise two sets of interconnecting terraces with a two-storey demountable building located between them. The existing presentation to Bourke Street includes a 2 m high brick wall topped with barbed wire. Part of the ground floor verandahs of one of the groups of terraces has been infilled with brick walls. These buildings are used for administration and classrooms with a large portion of the internal walls removed to create larger spaces. The entrances to the terraces in Bourke Street are not used for access and are usually closed. The playground for the primary school is located behind the terrace houses and demountable building and extends to a stone cliff face adjoining Thomson Street and Thomson Lane. This cliff face is part of a 19th century quarry, and is known as "the quarry wall". 6. The site is situated generally within an area of mixed development consisting of two to three storey terrace houses, medium density residential flat buildings and commercial activities. To the south are two and three storey terrace houses, a three-storey residential flat building and to the west, on the opposite side of Bourke Street, two-storey terrace houses predominate. The land to the east is separated by Thomson Street, and in part by Thomson Lane and contains two and three storey terrace houses elevated above the site and which have views over the site to the city skyline. The proposed development 7. The proposal seeks the demolition of eight terrace houses and the demountable building fronting Bourke Street. It proposes the construction of a new primary school to adjoin an existing art building. The proposed building is to be generally L-shaped, extending in a north-south direction adjacent to the quarry wall and then in an east-west direction to provide a frontage to Bourke Street. 8. The main features of the proposal are: · Ground floor - a partially excavated parking area for 23 vehicles with access from Bourke Street, pedestrian entry courtyard with lift, undercover link to the existing art building and ancillary facilities such as garbage storage, amenities etc. · First floor - main playground, classrooms with rainforest garden between the eastern elevation of the building and the quarry wall and a classroom fronting Bourke Street. · Second floor - classrooms and teachers' work and resource area fronting Bourke Street. · Roof terrace/attic floor - staff room with terrace and balcony areas fronting Bourke Street, roof terrace area over that part of the building adjacent to the quarry wall for passive recreation use by senior students and containing a number of planter boxes. · Removal of the existing brick wall and barbed wire from the Bourke Street frontage. · Open palisade fencing along Bourke Street. It is not intended by the proposal to increase student or staff numbers above existing levels. The relevant planning controls 9. South Sydney Local Environmental Plan 1998 ("LEP 1998") is the principal planning instrument. The majority of the site is zoned 5 Special Uses School, with the southern portion zoned Residential 2(b) (Medium Density). The proposal is permissible with consent within both zones. 10. Clause 49 of LEP 1998 requires the concurrence of the RTA to the proposal, because the site is identified as being within the vicinity of the Eastern Distributor tunnel. This concurrence has been obtained. 11. Clause 10 of LEP 1998 provides that consent must not be granted for development unless the council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located. I shall return to the relevant objectives later in the judgment. 12. LEP 1998 contains heritage provisions, and specifies heritage items in sch 2. These identified heritage items have been amended by Amendment 3 to LEP 1998 which was gazetted on 28 July 2000. Clause 6 of Amendment 3 contains savings provisions which require development applications lodged but not determined to be considered as if Amendment 3 had been exhibited but had not commenced. The development application falls within the provisions of cl 6. The parties agreed that Amendment 3 did not pose any significant additional requirements to those found in LEP 1998. Nevertheless the heritage experts who gave evidence for both parties generally addressed the requirements in Amendment 3, and the issues raised by the council also addressed Amendment 3. 13. The site is identified as a heritage item (No 447) in sch 2 of Amendment 3. The same listing also nominates three specific buildings on the site but does not nominate any of the terraces proposed for demolition. 14. The site adjoins part of Thomson Place which is also identified as a heritage item (No 1088) in relation to a "stone cliff wall and retaining wall" adjoining the street. This relates to the quarry wall. 15. The site is located within the East Sydney and Darlinghurst Conservation Area identified in sch 2A of Amendment 3. Schedule 2B identifies a number of streets as heritage streetscape areas but no streets adjacent to the site are included in this schedule. 16. There are also a number of heritage items in the vicinity of the site, the most significant being the Victorian terrace houses between 2 and 40 Thomson Street (Nos 1089 - 1100). 17. Clause 22 of Amendment 3 sets out the heritage aims, of which the relevant ones are: (a) to conserve the environmental heritage of the land to which this plan applies; and … (e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting; and (f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas; and … (h) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas or streetscapes within heritage streetscape areas; and … (j) to ensure the sympathetic use of sites containing buildings or facades of historic or streetscape importance which contribute to the character of the locality. 18. Clause 23A(1) of Amendment 3 provides that a person shall not demolish a building within a heritage conservation area except with council consent. Clause 23A(2) states: 23A(2) The consent authority must not grant consent to a development application required by subclause (1), being an application to erect a new building or to alter an existing building, unless it has made an assessment of: (a) the pitch and form of the roof; and (b) the style, size, proportion and position of the openings for windows and doors; and (c) whether the colour, texture, style, size and type of finish of materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the heritage conservation area or heritage streetscape area in which the building is situated; and (d) the impact on the landscape. 19. Clause 24 of Amendment 3, in relation to development in the vicinity of heritage items and heritage conservation areas, states: 24 The consent authority must not grant consent to development on land in the vicinity of a heritage item, a heritage conservation area, a heritage streetscape area, an archaeological site or a potential archaeological site unless it has considered an assessment of the impact the proposed development will have on the heritage significance, curtilage and setting of the heritage item, on the heritage significance of buildings within the heritage conservation area, or on the heritage significance of the streetscape within the heritage streetscape area or of the actual or potential archaeological site, as well as the impact of the development on any significant views to or from the heritage item, heritage conservation area or streetscape. 20. Development Control Plan 1997 - Urban Design ("DCP 1997") also applies to the site. The relevant sections are "settings" in pt B cl 2, "heritage" in pt E cl 3 and "safety and security" in pt E cl 4.2. 21. South Sydney (Heritage Conservation) Development Control Plan 1998 ("the Conservation DCP") also applies to the site. The relevant sections are "demolition" in cl 3.1.4, "new development - infill" in cl 4.2, "massing" in cl 4.2.4, "materials and details" in cl 4.1.4 and "orientation and setback" in cl 4.2.6. 22. I have had regard to each of these instruments and significant provisions are referred to later in this judgment. Evidence 23. The following experts provided evidence for the council: · Mr M Neustein, architect. · Mr R Staas, architect and heritage consultant. · Professor N Quarry, architect. · Mr N Koikas, acoustic consultant. · Mr T Kass, historian and heritage consultant. · Dr H Golder, historian. · Mr S Robertson, architect and · Mr S Brown, town planner. 24. Of these experts Mr Koikas, Mr Kass and Dr Golder were not required for cross-examination. Mr Robertson and Mr Brown appeared by leave on behalf of the East Sydney Neighbourhood Association. 25. The Court also heard evidence from the following local residents about their concerns: · Mr J Gillis, 8 Thomson Street. · Mr R Lyle, 2 Thomson Street. · Ms M Smyth, 32 Thomson Street. · Mr R Sulich, 6 Thomson Street. · Ms B Tapp, owner but not occupier of 26 Thomson Street. · Mr R Head, 22 Thomson Street. · Mr R Lovell, 5/1 Thomson Street. 26. A large bundle of documents containing written objections from local residents was tendered. 27. For the applicant, the following experts provided evidence: · Ms J Binden, town planner. · Professor R Mackay, heritage consultant. · Mr H Tanner, project architect and heritage consultant. · Mr M Wright, landscape architect. · Mr S Kafes, traffic engineer. · Mr B Murray, acoustic consultant. 28. Of these experts Mr Wright, Mr Kafes and Mr Murray were not required for cross-examination. 29. A local resident, Mr D Russell of 164B Bourke Street, gave evidence supporting the proposal. Issues 30. The council filed 13 issues in the proceedings, but they were ultimately refined into the following issues: (1) Whether the existing terraces should be demolished? (2) In a heritage context is the proposal satisfactory in relation to: (a) character (b) streetscape (c) the quarry wall? (3) Is the proposal consistent with the masterplan? (4) Is the proposal satisfactory in a Residential 2(b) zone? (5) Does the proposal adequately address the issues of passive surveillance, an active street frontage and public domain? (6) Is the proposal satisfactory for Thomson Street in relation to views, noise, the impact on heritage items and visual privacy? Issue 1 - Demolition 31. The Conservation DCP provides controls for demolition of heritage items and buildings in a conservation area. Clause 3.1.4 relevantly provides as follows: 3.1.4 In assessing an application for the demolition of a heritage item, Council will need to consider the following: · the heritage significance of the item; · the structural condition; · comparative analysis; · the contribution the item makes to the streetscape; and · the development and suitability of the proposed development. Similar issues will be considered where a building in a conservation area is proposed to be demolished. The terraces are not heritage items but are in a conservation area. 32. The demolition of the terrace houses was considered acceptable by Mr Tanner for a number of reasons. Firstly, in his opinion, the condition of the terraces do not warrant their retention. Some of the terraces are effectively gutted and have permanent damp problems. Additionally, settlement has resulted in structural movement, failure of finishes and uneven floors. Some of the terraces have unusable upper levels because of safety problems. Secondly, the floor levels of the terraces do not align with the floor levels of other nearby school buildings, necessitating ramps or steps which restrict disabled access. Thirdly, and despite their substantial modification, the terraces do not provide a satisfactory layout for school purposes. 33. Mr Tanner's conclusions were supported by Professor Mackay. He placed some importance on the fact that the terraces are not heritage items. While he accepted that the terraces make a moderate contribution to the overall history and significance of the site, their value is contributory only. As this contribution is only a moderate one it would hold less sway when making a balanced decision having regard to other salient features. In Professor Mackay's opinion, the overall integrity of the terraces has already been severely compromised. The technical reconstruction of the terraces is not warranted given the modest contributory value of the terraces and the other constraints that relate to the site. 34. Mr Neustein, on the other hand, did not accept that there is sufficient justification for demolition of the terraces. He suggested that it would be possible to align the floor levels of the terraces with the floor levels of the rest of the school by using a lift that stops at half levels. Mr Neustein also stated that he saw no reason why the terraces could not be renovated to provide a more useable area for school children while at the same time maintaining their current form and detail. 35. Mr Staas also supported the retention of the terraces. In his opinion, the applicant's assessment does not adequately address the contribution that the terraces make in the context of the streetscape. While conceding that the individual terrace buildings are not highly significant or rare, he considered that they nonetheless form a significant cohesive whole. 36. The residents who gave evidence for the council sought the retention of the terraces because they considered that they formed an important part of the Bourke Street area. 37. I have considered this evidence having regard to the relevant matters set out in cl 3.1.4 of the Conservation DCP. First, the terraces are not a heritage item. Secondly, despite Mr Neustein's evidence about possible adaptation, the only evidence about their structural condition was given by Mr Tanner, who, in a report titled "Heritage Assessment - SCEGGS Darlinghurst" described the terraces as being "substantially altered to accommodate the primary school" and their condition as being "generally very poor" and he confirmed that opinion in his oral evidence (see par 32). Thirdly, all experts agreed that the terraces make some contribution to the streetscape, but it is a question of degree, and, in the context of all the matters required to be considered under cl 3.1.4, that contribution is not the overriding consideration. Fourthly, the proposal involves a site that is largely zoned for school use, and it must therefore be regarded as suitable for the site. For these reasons, I consider that the demolition of the terraces is not unacceptable and development consent should not be refused on this ground. Issue 2(a) - Character 38. "Character" is required to be taken into account by the relevant planning instruments. Thus cl 28(1)(b) of LEP 1998 requires the council to take into consideration whether the development "reinforces and enhances the … character of the locality". Clause 1 of pt E of DCP 1997 seeks to ensure that development "is compatible with the desired character of the locality" and "adds something new and positive to the … neighbourhood". The specific heritage aims contained within Amendment 3 state that the consent authority must not grant consent to development within a heritage conservation area unless it is consistent with the aims and objectives of the clause. Objective (e) requires any development be "sympathetic to and does not detract from, the heritage significance of … conservation areas and their setting". Objective (f) requires that any development should be "sympathetic to and [should] not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas …". 39. Mr Tanner considered the proposed design to be acceptable in terms of character. He saw the district as having a very mixed character of historic mansions and workshops, apartment buildings and educational facilities. In his view, the proposal is consistent with this diverse character. Mr Tanner stated that the proposed building would create a sense of transformation from the existing very large science block and library block to the north through to the existing terrace houses adjoining the site. Furthermore, Mr Tanner suggested that the vertical pillars proposed in the wall of the playground facing Bourke Street would continue the rhythm of the vertical walls that separate the adjoining terraces houses to the south. 40. Professor Mackay considered that the scale of the proposed development along Bourke Street would not visually dominate the early buildings to the south or the north. He also stated that the proposed building would sit "comfortably" within the Bourke Street streetscape, be readily identifiable as part of the school, but would be of a scale, form and character that would be compatible with the adjacent buildings. Overall, he saw the proposed development as not detracting from the heritage significance of the distinctive streetscape in Bourke Street and architectural styles which define the character of the heritage conservation area. 41. Mr Staas saw the proposal as having a negative impact on the traditional development patterns in Bourke Street and hence its heritage significance. He contended that the other remaining heritage elements in this part of Bourke Street are supported visually by the existing buildings in a way that will not be achieved by the proposal. In this way the design fails to reinforce or enhance the present identified character of the locality and will be detrimental to its heritage values. The portion of the proposed building between the southern boundary and the proposed entry is unsatisfactory in achieving a sympathetic design in the historic context. Mr Staas saw the fixed panel of the carparking area and the scale of the column supports on the boundary as being particularly intrusive. 42. Professor Quarry saw the proposal as having an adverse effect. In his opinion, the character is made up of facades with openings for windows and doors, but the proposal does not reflect this rhythm. He accepted that a replication of the heritage streetscape is not appropriate, but considered that it is possible to reconcile heritage and modern values. He described the proposal as a sincere but flawed attempt to achieve this result. 43. Mr Robertson described the impact of the proposal as significant based on the loss of the terraces and their replacement with generally a one storey podium containing a carpark at the southern end and a three storey block adjacent to a two storey terrace. The playground, on top of the carpark, would also destroy the existing urban wall of the street. 44. The concerns expressed by the council's experts were generally supported by the residents in their oral evidence and in their written submissions. 45. In the context of the relevant parts of LEP 1998, DCP 1997 and Amendment 3 that I have described, "character" is a concept related to a broad area or broad locality. I accept Mr Tanner's description of the "character" as being formed by a range of different uses resulting in a mixed character, which also, significantly, includes the existing school (see par 39 above). His evidence in this regard was confirmed on the site inspection. I am persuaded by the evidence of Mr Tanner and Professor Mackay that the proposal conforms with the requirements as to character, and development consent should not be refused on this basis. Issue 2(b) - Streetscape 46. A common theme amongst the relevant planning instruments is the impact of a proposed development upon streetscape. Thus cl 28(1) of LEP 1998 requires consideration as to whether the proposal "reinforces and enhances the streetscape". One of the principles relating to buildings in s 3 of pt B of DCP 1997 seeks development which is "sympathetic to the prevailing height, bulk, scale, design and external appearance of adjacent buildings" and which is "consistent with the alignment of neighbouring buildings". Clause 1 of pt E of DCP 1997 requires a development that "adds something new and positive to the streetscape …". Clause 22(f) of Amendment 3 requires the development to be undertaken in a manner "that is sympathetic to, and does not detract from the heritage significance of distinctive streetscapes …". Clause 23A(2) requires specific matters to be assessed for new buildings in conservation areas. They include "the pitch and form of the roof", "the style, size, proportion and position of the openings for windows and doors" and "colour, texture, style, size and type of finish". Clause 4.2 of the Conservation DCP also provides principles for what it calls "infill development". The principles that are required to be satisfied are "harmony of character", "sympathy of scale", "appropriateness of massing", "sympathetic materials and details" and "appropriate orientation and setback". 47. Mr Tanner, Professor Mackay and Ms Binden all formed the view that the impact of the proposal on streetscape was acceptable, while Professor Quarry, Mr Robertson and Mr Staas took the opposite view. Central to their disagreement were a number of elements within the proposal. These were that part of the building proposed in the south western corner of the site, the pergola structure over the raised playground and footpath, the carpark wall and display panels. I deal with these elements individually. The south western corner of the building 48. This part of the building will comprise four levels. The lower level is to be located off the carpark area and is to be designated as a general store area and service area. The other levels, in ascending order, are to be used for an art classroom, a teachers' resource room and a staffroom with balcony. The roof is to be a shallow barrel shape running parallel to Bourke Street and extending for a large portion of the Bourke Street frontage. 49. Mr Tanner saw the height of this part of the building as acceptable, referring to it as a "visual pivot". In his opinion, the construction allows an interconnection between the existing school buildings and terrace houses which adjoin the site on Bourke Street by means of transitional architectural elements. Professor Mackay was of the opinion that this part of the building will assist in the transition between the terraces and the school. Ms Binden described the proposed building as achieving an appropriate continuity of and cohesion with the adjoining terraces. She also saw the building as reflecting both scale and proportion in the rhythm of the existing terraces. Ms Binden described the building as not having an adverse impact on Bourke Street in terms of height, bulk, scale and character. 50. Mr Neustein said that this part of the building is not of a type and scale compatible with existing residential development in Bourke Street. He also raised a concern over the height of this part of the building, although he described it as only a minor problem. The presentation of this part of the building to Bourke Street was also raised as a concern by a number of local residents. Professor Quarry described the roof form as "untypical" of the architectural character of the area generally. Mr Staas said that the building would act to form a strong contrast with the adjoining terraces which would tend to visually separate the school from surrounding residential development. Mr Robertson was critical of the relationship between the height of the proposed building and the adjoining terraces and thought that the result would be a scheme that does not provide cohesion and continuity. 51. Having regard to the controls I have outlined in par 46, I am persuaded by the expert evidence furnished on behalf of the council. I consider that the barrel roof form of this part of the proposal is not in harmony with the streetscape, even though it replicates a smaller example elsewhere on the site. The building does attempt to replicate the height, pitch and roof form of the adjoining terraces to the south, but this is overpowered, in my opinion, by the barrel roof form. 52. A revised roof design was tendered by the applicant. In the revised design, the barrel roof form was to be replaced by a box structure intended to act as a transition between the two different roof pitches from the south and the west. While this revision would go some way to improving the roof form in this location, I am not convinced that it goes far enough. The council has proposed a condition of development consent which would require the roof form proposed on the lower level to be carried along the Bourke Street frontage to more closely align with the form of the adjoining terraces roofs. It would also reduce the overall height in this location. Such a re-design will require the abandonment of the staffroom and balcony in this location, but such an abandonment would have been a consequence of the applicant's revised roof design in any event. I consider, therefore, that the proposal should be modified in this respect and that accordingly, the condition as drafted by the council will be imposed and numbered 3. Pergola 53. A steel framed pergola is to be constructed over the playground and is also to extend over the footpath area of Bourke Street. The pergola is to be approximately 26 m x 9 m. 54. Mr Tanner saw no adverse visual impacts from this structure as he explained that the vertical supports continued the rhythm of the blade walls of the adjoining terrace houses. A similar view was held by Professor Mackay. 55. Mr Neustein accepted that the vertical supports were designed to achieve some rhythm with the adjoining terraces, but he did not believe this would be achieved if the proposal was constructed. Mr Staas described the pergola as being out of scale with other buildings in the street and creating a strong contrast with the adjoining terraces. 56. In a conservation area context, the pergola structure has little, if any, relationship with any other nearby structure. The plans show only an area of approximately 17 m x 5.5 m which is used as shade structure for the playground. The remaining area is open and provides no shelter or shade. 57. Mr Tanner's comments on the blade walls have some validity, but I am not persuaded that it represents a significant attempt to assimilate the design into the streetscape as it reinforces only one element of the many that could be attributed to a terrace house. 58. The need for shelter for the playground still exists and, in my view, can still be provided for the same area proposed in the plans but without such a conspicuous structure, by reducing the overall size of the pergola, removing the portion that extends over the footpath and by setting it back from the site boundary. 59. The council's draft condition of consent required the removal of so much of the pergola as will extend over the street, and I will amend this condition (to be numbered 9) to reflect the need to reduce its size and set it back from the site boundary. Carpark wall 60. The wall of the excavated carpark will run for a distance of some 24 m along the Bourke Street frontage of the site. The height will vary from around 3 m in the north to around 2 m in the south. This distance includes a return of 600 mm on the slab above the carpark. Blade walls are to be provided at 4 m centres and between these blade walls, two powder coated aluminium vents are to be located for ventilation of the carpark. The wall is to have a rendered finish, although the area between the vents is proposed (according to the plans) to be used for mural panels displaying school art. 61. Mr Tanner relied on the vertical blade walls to articulate this facade and provide an acceptable streetscape. Professor Mackay supported this approach and stated that while the wall will not be set back the same distance as the walls of the adjoining terraces it will be sufficient to articulate the building into vertically proportioned bays which relate to the adjoining terraces. Ms Binden saw the blade walls as achieving a sense of cohesion and continuity and minimising a "walled effect". 62. Mr Neustein perceived a walled effect created by the carpark. He distinguished between a wall for a boundary which would have openings for windows and doors and the wall as proposed which will have only vertical blade walls and louvres. Mr Staas described the carpark wall as little more than an articulated wall and thought it would be out of character with other buildings in the street. Mr Robertson agreed with the conclusions of Mr Neustein and Mr Staas. 63. Through Mr Tanner, the applicant made three suggestions for amelioration of the potential impact of the carpark wall. First, the return (or upturn) of the wall could be reduced by around 500 mm, thereby reducing the perceived height of the wall from the street. That would result in the visible height ranging from 2.5 m to 1.5 m over its length. Secondly, the areas between the louvres appear unsuitable for mural panels and should not be used for this purpose. Thirdly, the area between the vents could be constructed in a "stone-like material which would give some stone texture". These suggestions would, in my opinion, reduce any impact of the carpark wall to an acceptable level, and I propose to impose a condition of consent (to be numbered 4) to require these suggestions to be implemented. Display panels 64. The wall to the north of the entrance gates is to consist of a solid wall varying between 2.5 m and 2.1 m in height. A number of openings of various sizes in the wall will provide spaces for the display of school artwork. To the south of the entrance gates, another solid wall 3 m in width will display the school name and crest. 65. Mr Tanner agreed that the these could be vandalised, but he saw the wall as a good opportunity to display artwork generated by the school and also to identify the school and its entrance. 66. However, the applicant offered an alternative involving replacement of the solid walls in this area with a palisade fence. This in my opinion will achieve a degree of openness to the streetscape, and is an acceptable alternative. I will impose a condition (to be numbered 12) to this effect. Streetscape generally 67. For the reasons I have set out, I am not persuaded that development consent should be refused by reason of the individual matters I have outlined. Generally, I have formed the opinion that the proposal conforms with the controls I have set out in par 46. The proposal must be seen, in this regard, in its context. It involves the development of a school on a site that is largely, although not entirely, zoned for school purposes. It would be unrealistic to expect that a development of this nature, in complying with the streetscape controls, should ignore the school's location in the streetscape and should instead pay attention solely to the residential nature of the remainder of the streetscape. 68. I have paid particular attention to the "infill principles" required by cl 4.2.1 of the Conservation DCP. I have some doubt as to whether the proposal is, strictly speaking "infill", a doubt shared by Mr Tanner, but cl 4.2.1 makes it clear that the "infill principles" apply because is states that "[A]ll new development in a conservation area should respect the design of its neighbours and the character of the design generally". If the modifications I have set out are made then, in my opinion, the proposal overall will conform to those principles. It will have harmony of character, sympathy of scale, appropriate massing, sympathetic materials and details, and appropriate orientation and setback. It will reinforce the streetscape and will not be out of sympathy to it. Issue 2(c) - Quarry Wall 69. A document entitled "Report on the Historical Significance of the Quarry Wall - Thomson Place Darlinghurst" prepared by Dr Golder was tendered which outlined the historical significance of the quarry wall, and there is no dispute about that. The concern of the council is rather whether the location of the proposed building would adversely affect the quarry wall through loss of accessibility and visibility. The Heritage Assessment (to which I referred in par 37) makes the following recommendation for the quarry wall: To retain, conserve and maintain the built and natural wall and palisade fence. The wall should remain exposed in any new development in the area. No building directly abutting the wall or cliff or defacement of the wall should be allowed. 70. Currently the quarry wall is open to the playground of the primary school. The proposal is to erect a building at a distance between 3 m and 5 m from the quarry wall and to a height of some 8 m. Landscaping in the form of a rainforest is proposed in the area between the quarry wall and the building. 71. Professor Mackay stated that the proposed building will not have an adverse impact on the quarry wall. The portion of the quarry wall within the site is already substantially obscured by concrete render and it is interrupted by a number of support buttresses due to previous instability. The quarry wall will still be visible from within the school grounds if the building is constructed. Professor Mackay noted that the quarry wall currently cannot be seen from outside the school grounds. 72. Mr Tanner also accepted the significance of the quarry wall but suggested that the design takes this significance into account despite parts of the wall within the site being heavily repaired. 73. Mr Robertson said the creation of a significant rainforest adjacent to the quarry wall face is totally inappropriate given its cultural significance. The proposed treatment of the quarry wall area will continue to obscure the sandstone face of the quarry wall from the public view, as well as to restrict the full sweep of the quarry face. 74. A number of the residents expressed the opinion that while the view of the quarry wall is limited at present, any redevelopment of the site should provide greater opportunities for view by the general public. 75. I am satisfied that what is proposed is consistent with the recommendation in the heritage assessment which I have quoted in par 69, and I am satisfied that the relationship of the proposed building with the quarry wall will not impact adversely on the significance of the quarry wall as it presently exists, and does not justify the refusal of development consent. In reaching this conclusion, I have taken into account the degraded condition of those parts of the quarry wall within the site, the current lack of public access to and visibility of it, and the more intact sections of the quarry wall in Thomson Place (although, as graphically demonstrated on the view of the site and its surrounds, Thomson Place is itself degraded, uninviting and perhaps unsafe). Issue 3 - The Masterplan 76. Clause 28(2) of LEP 1998 states: 28(2) The council, before granting consent to the carrying out of development on land within Zone No 5 or comprising a site area of 5,000 square metres or more, must take into consideration any masterplan for the land that is available to the Council. 77. In March 1999, a masterplan for the site was lodged by the applicant with the council. The masterplan identified two development scenarios for the primary school part of the site which were "Thomson Place Option P1" and "Bourke Street Option P2". The masterplan was considered at council's Planning and Development Committee meeting on 28 July 1999. At this meeting, consideration of the masterplan was deferred until after a public meeting could be held. The public meeting was held on 19 August 1999. The masterplan was considered and endorsed at the council's Planning and Development Committee meeting on 1 September 1999 and by the full council on 8 September 1999. 78. In the endorsement of the masterplan, the council resolved that a "preliminary assessment of Option P1 for the proposed primary school building and its location is unlikely to be supported by Council if submitted as a Development application and that P2 is the preferred option …". The council further resolved "that any development of a primary school building on the site" should provide 26 outcomes in relation to a design. These were as follows: (a) Development shall not exceed the height of the adjacent terraces at Bourke Street between the school and Liverpool Street; and (b) Development shall not be above the cliff wall; and (c) Low planting and balustrades will not extend above the sightlines available from Thomson Street terraces; and (d) City skyline views from Thomson Street residences will not be compromised; and (e) That the proposal shall not obstruct or encroach on significant view corridors, namely those views available from terraces to the east of the site; (f) That the Primary School Building shall achieve distinctive building design that terminates vistas and creates picturesque streetscapes; (g) Maintain vistas along streets to buildings and places of heritage, architectural or landscape significance; (h) Enhance the city skyline (where possible and appropriate); (i) Incorporate 'fine grain' textures that enhance the historic character; (j) Provide a sense of cohesion and continuity to the streetscape; (k) Address and define streets and public spaces; (l) Maintain the street alignment with minor variation in setback; (m) Reinforce the predominant scale of the streetscape; (n) Enhance the city's urban and natural corridor systems by the use of appropriate landscape treatment such as verges and tree planting to reinforce the precinct edges and the street hierarchy of the city; (o) That buildings shall address and provide natural surveillance to Bourke Street through orientation and window openings; (p) That landscaping shall be used to ensure that the edges of the site are enhanced and bulk and scale of any building is appropriately offset by landscape features; (q) That the proposal will be designed so that a 'walled effect' does not occur at Bourke Street or Thomson Street; (r) That the development shall address changes to Bourke Street, arising from the development of the Eastern Distributor: being more pedestrianised and localised-articulation, modulation and landscaping of any buildings facing Bourke Street is necessary. Walls at Bourke Street are discouraged; (s) That street tree planting, at the developers expense, at Bourke Street may also be appropriate; (t) That development shall not adversely impact on the heritage significance of the St Peters Church site and shall not detract from the setting of the adjacent buildings to the north and shall not adversely impact on views to significance heritage buildings and structures; (u) That all development shall comply with the objectives, performance criteria and provisions contained in Local Environmental plan 1998, Development Control Plan 1997, and Draft Local Environmental Plan 1996 (Heritage and Conservation); (v) That any development on the site shall comply with the overshadowing performance criteria and objectives contained in Development Control Plan 1997. Solar access to the private open space and principal living area windows of adjacent residential properties shall be maintained for a period of 2 hours, between 9.00am and 3.00pm at the winter solstice (21 June); (w) That any proposed increase in parking on the site shall not exceed the maximum provisions of Development Control Plan No. 11 - Transport guidelines for Development. Attempts shall be made to minimise parking needs on the site, and encourage public transport patronage and walking; (x) That any development in vicinity of or at the St Peters Car Park shall ensure enhancement of the St Peters Street frontage, possible works include increased landscaping, paving, resurfacing of the car park and lighting; (y) That any development on the site shall not reduce solar access to the private open space and principal living area windows of adjacent residential properties to less than 2 hours, between 9.00 a.m. and 3.00 p.m. at the winter solstice (21 June); (z) That any proposed increase in parking on the site shall not exceed the maximum provisions of Development Control Plan No. 11 - Transport Guidelines for Development Attempts shall be made to minimise the level of parking provision on the site, and encourage public transport patronage and walking; The development application the subject of this appeal is based on Option P1. 79. Two matters arise from the circumstances I have outlined. The first relates to the masterplan itself. The obligation cast upon the council (and the Court on appeal) by cl 28(2) of LEP 1998 is to take the masterplan into consideration. I have done so, and have noted that the proposal seeks to implement one of the options set out in the masterplan. Furthermore, it is not incumbent upon the applicant to adopt the option which the council preferred. The council explicitly chose not to specify any obligation in respect of either of the options, but it left the final decision open, although it indicated its preference was for Option P2. I note also that the 26 outcomes sought by the council, in the second limb of its resolution, refer to "any development of a primary school building" but did not refer to either Option P1 or Option P2. 80. Secondly, the 26 outcomes are not matters which the council (and the Court on appeal) is required to take into consideration pursuant to s 79C of the Environmental Planning and Assessment Act 1979, although the provisions of LEP 1998, DCP 1997 and the Conservation DCP are expressly required to be taken into consideration. Nevertheless, the 26 outcomes do reflect the council's views about any proposed development on the site, and they should not be ignored. It will be seen, however, from a fair reading of them, that they either fall within the issues raised in this case, or they relate to matters not in issue or which are irrelevant to this development. Thus, nine of the outcomes relate to the issues of heritage context, character and streetscape (outcomes a, f, i, j, k, l, m, q and r), six of the outcomes relate to the issue of views for Thomson Street (outcomes b, c, d, e, g and h), one of the outcomes (u) relates to the planning controls, and one of the outcomes (o) relates to natural surveillance. The remaining outcomes are not in issue or are not relevant (n, p, s, t, v, w, x, y and z). Those outcomes which fall within the issues identified in this case are included in my assessment of those issues. Issue 4 - The Residential 2(b) zone 81. Although a zoning plan was tendered, it is unclear precisely where the Residential 2(b) zone boundary falls within the site. However, it appears that the part of the site zoned Residential 2(b) currently contains the demountable building, the southern group of terraces and the areas behind those buildings. 82. The proposed building within this zone will include part of the carpark, the playground and that part adjoining the southern boundary and part of the classrooms behind. 83. Controls in cl 2 of pt D of DCP 1997 provide for a 9 m height control and a floor space ratio ("FSR") of 1:1. It was not in dispute that the part of the proposal within the 2(b) zone exceeded both requirements. 84. Ms Binden stated that the maximum height of the proposal is 10.5 m and this relates only to the staffroom in the south western corner of the building. The remainder of the building will comply with the 9 m height limit. In her opinion, the height exceedence does not give rise to any environmental impacts in terms of streetscape, bulk, scale, privacy, overshadowing, view loss or the like. In accepting that the FSR exceeds the DCP 1997 requirement, Ms Binden stated that the FSR for the whole school is only in the order of 0.62:1. In her opinion, this is reasonable for an inner city location and the technical non-compliance over the part of the site zoned 2(b) does not represent an overdevelopment of the site. 85. Mr Neustein disagreed with Ms Binden and stated that the height in the south western corner appears to be 12.5 m. While accepting that the quantum of departure should not in itself be objectionable, he considered that the location next to existing terrace houses to the south made it unacceptable. 86. I accept Ms Binden's evidence on the issue of exceedences of these controls, and Mr Neustein's particular concern about the height exceedence in the south western corner of the proposal will be met by the removal of the barrel roof form, a matter to which I refer in pars 49 - 50. 87. A concern was also raised in relation to whether the proposal is consistent with objectives (a), (c) and (d) for the 2(b) zone. These objectives are: (a) to enhance the amenity of existing medium density residential areas; and … (c) to ensure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment; and (d) to provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment. 88. Ms Binden saw no inconsistency with these objectives on the basis that height, solar access, presentation to the streetscape, active street frontage and safety are satisfactorily addressed in the proposal. She also considered the relationship of the proposal to the character, type and scale of the built environment, including nearby residential development, to be satisfactory. 89. Mr Neustein, however, stated that the existing medium density residential area is not enhanced by the proposal. He saw its height as anomalous, and the built form not in character with surrounding development. His opinion was that the proposal is not of a type and scale compatible with existing residential development and will detract from the amenity enjoyed by nearby residents. 90. Again, I accept Ms Binden's evidence. It is clear, in my opinion, that the demolition of the existing terraces and the removal of the brick wall topped by barbed wire is an outcome consistent with the enhancement of the amenity of the existing medium density residential areas. The changes suggested to the Bourke Street frontage (see pars 51, 52, 58, 59 and 63) further enhance the amenity of existing medium density residential areas. Furthermore, having regard to the fact that that part of the site which is zoned 2(b) is already occupied by school structure and that it adjoins an even larger part of the site occupied by school structures, the proposal will not be out of character with the existing built environment, and it will enhance, not detract, from the amenity enjoyed by nearby residents, in terms of visual aspect, increased landscaping, safety and surveillance. Accordingly, I conclude that the proposed development is not inconsistent with the objectives of the 2(b) zone. Issue 5 - Passive surveillance/active street frontage/public domain 91. Clause 28(1)(f) of LEP 1998 requires consideration to be given to whether a development "establishes and enhances the public domain". Part C of DCP 1997 deals with the public domain which is defined as "… the shared urban areas and spaces, the structures that relate to those spaces and the infrastructure that supports and serves them". 92. Clause 4.2 of pt E of DCP 1997 deals with safety and security. Its objective is "to ensure buildings and public spaces are designed to both enhance safety and minimise opportunities for crime". Security is also raised in cl 9 of pt D of DCP 1997 where it has an objective "to ensure development design maximises actual and perceived safety within the community". 93. Mr Tanner described the proposal as a simple and attractive form that will provide open palisade fencing and planting to Bourke Street. It will reference Bourke Street as a residential/educational precinct and as such will be a benefit to the community. In his opinion, surveillance for the students and also for the general public is adequately addressed through the design. The design provides for surveillance of the playground area and also the public domain from a number of areas occupied by teachers and administrative staff. 94. Ms Binden stated that the proposal will achieve an active street frontage that links in a positive way to the surrounding locality and it will significantly improve the actual and perceived safety of Bourke Street for both school students and staff and the local community. She also noted that the proposed playground, although elevated above street level, is orientated towards Bourke Street and during its use will contribute to natural surveillance and contribute to the pedestrian character of the area. 95. Professor Quarry considered that the proposal will not provide an active street frontage. He recognised the inherent conflict in trying to provide an active street frontage for a primary school in a location where street prostitution and drug activities are prevalent. He also considered the interaction between the playground and the street as not being an appropriate response. Professor Quarry suggested that this could be done by redesigning the building to provide knowledge of the activities within the building to persons in the public domain. Mr Robertson favoured Option P2 which proposes building along Bourke Street. This would place classrooms overlooking the street which would increase security on the street. It would, in his opinion, also allow a greater level of visual contact and interaction between the school and the street. 96. The general thrust of the council's evidence was that the design should seek to reinforce the residential nature of the area through greater interaction between the school and the public domain. Its evidence was generally supportive of Option P2. Underpinning this was the desire to see the removal of the existing problems of street prostitution and drug related activities. 97. On this issue, I prefer the evidence of Mr Tanner and Ms Binden. The proposal will open up the Bourke Street frontage through additional landscaping and palisade fencing which is to be extended along the frontage beyond proposed buildings to existing buildings. I accept that this new openness is diminished in the area of the carpark but not to a level that is detrimental to the overall concept. 98. I am not convinced that casual surveillance issues are a matter that should be determinative in these proceedings. There are serious conflicts between young children and the more undesirable people who were said to frequent Bourke Street. Clearly, the protection of children should be paramount in any design. In my view, the strength of passive surveillance rests more importantly with the opportunities for surveillance rather than contact surveillance. In this regard, the proposal is acceptable. 99. In practical terms, it would seem that the council's desire to improve the public domain must be tempered to a degree by the proposed use. Not all uses can achieve the same level of contribution to the public domain as other uses. Considering this, the proposal, in my opinion, achieves an acceptable result. Issue 6 - Thomson Street 100. A number of separate issues were raised in relation to the properties in Thomson Street. I deal with each of these individually. Views 101. The properties in Thomson Street currently enjoy views to the west, over the site to the city. Clause 2 of pt B of DCP 1997 identifies these views as "distant" and states that development is "not to obstruct or encroach on significant view corridors" and is to "enhance the City skyline (silhouette)". 102. The loss of views was raised by a number of residents on the ground that the building and its roof terrace area will encroach into the view now presently enjoyed from Thomson Street. Also some considerable concern was expressed about the loss of void area facing the quarry wall. Ms Smyth described this as losing "the magic of looking down from Thomson Street". Additional concerns also raised the likelihood of shade structures being erected for students on the roof top terrace area, notwithstanding that such structure are not part of the current proposal. Concern was also expressed that the landscaping proposed for the terrace area might ultimately obstruct the views from Thomson Street. 103. In his report on visual issues, Mr Wright stated that the proposed building will not significantly alter the predominant lines and vistas from Thomson Street mainly due to the proposed buildings remaining close to and below the existing street level and also because of the presence of the palisade fence and existing street trees. He thought the reduction in the quarry void would alter the vista if an observer was to stand near the western edge of Thomson Street, although some of the precipitous character of the quarry wall will be retained. 104. The site inspection of the site and surrounding areas was beneficial in understanding this issue and it supported the conclusions of Mr Wright. The roof top terrace floor level will be generally below the level of Thomson Street, but parts of the balustrade will be above that level by only some 200 - 300 mm at its maximum. In any event, the views to the city skyline will not be obscured by the proposal. The perceptions of the void, as part of this vista, will be diminished, but not to a level that would warrant the refusal of development consent. The matter of appropriate landscaping for the terrace area can be appropriately addressed through conditions. Noise 105. The proposal indicates that the roof top terrace is only to be used by the senior school students for passive purposes which Mr Tanner interpreted as talking and eating with no active games. I can hardly deny that teenage girls may sometimes be noisy but this is a matter that can be adequately controlled by the school. The hours of use are to be restricted to one hour before and after core senior school hours and the area is not to be available for other activities. 106. Despite these aspects of the proposal, the potential for noise from the roof top terrace area was seen as an issue by the residents of Thomson Street. 107. The issue of noise was addressed by experts on behalf of both parties following a direction from the Court to confer together. Agreement was reached on appropriate conditions as follows: (13) That the use of the roof terrace shall be restricted to passive recreation purposes of senior students only between 1 hour prior to the commencement and 1 hour following core senior school hours. A separate Development Application shall be submitted for council's consideration for use of the roof terrace for any other purpose. … (30) Within 1 month of completion of construction and commencement of use of the new buildings, noise measurements shall be carried out at the residences in Thomson Street during 2 separate lunch times to measure the LAeq.15min noise levels during those times. Where any of the LAeq.15min noise levels resulting from activity at the school exceed 57dBA, then the school shall implement further noise management or control measure to ensure compliance. These measures may include additional supervision of roof terrace activity or erection of a transparent noise barrier on the boundary adjacent to Thomson Street to provide noise shielding to the ground and first floors of the Thomson Street residences. All measurements shall be shown as a graph of the instantaneous sound pressure levels over time including all noise metrics. 108. In my view, the agreed conditions provide an acceptable means of addressing the potential noise impacts on the properties in Thomson Street and I propose to impose them. Heritage impact 109. As I have set out in par 19, cl 24 of Amendment 3 requires consideration of the impact of the development upon heritage items. The houses in Thomson Street are heritage items. I have considered this aspect, and I have concluded that the proposal will have no adverse heritage impact. It is to be constructed almost entirely below the level of Thomson Street. Some parts of the building will be visible but it will not dominate or overshadow the heritage houses. It will have no impact on the curtilage or setting of the heritage items, except insofar as the proposal will impact on the quarry wall and the void. As I have set out in pars 102 - 104, the impact will not be unacceptable. Visual privacy 110. A number of residents of Thomson Street expressed the concern that activities on the roof terrace of the building will impact upon their privacy, either upon the verandahs of their houses or upon the front rooms of those houses. 111. One of the visual privacy objectives set out in cl 4.1 of pt E of DCP 1997 seeks to "ensure development minimises…overlooking to adjacent development". A number of examples of how this could be achieved are provided in cl 4. One example describes a separation of 12 m as a "desirable separation". 112. The distance between the roof terrace of the proposed building and the front boundaries of the houses in Thomson Street is in the order of 15 m and the verandahs and front rooms of those houses are located even further than this distance. 113. Taking into account the these matters, and having regard to the limited use of the roof terrace area, I am satisfied that the proposal provides a satisfactory level of visual privacy. Conditions of consent 114. As required by the Land and Environment Court Rules 1996, the council tendered draft conditions . Most of the conditions were acceptable to the applicant, but the following conditions remained in dispute. However, before turning to the disputed draft conditions, there are two important preliminary matters to be noted. 115. Firstly, the draft conditions purport to impose a deferred commencement consent. It is unclear from the numbering in the draft which conditions are intended to be the basis of deferred commencement, but it appears to be two - a condition requiring a schedule of external finishes, and a condition requiring an energy performance report. Whilst I am prepared to impose these requirements, I do not consider them to be properly the subject of deferred commencement, and I have altered the draft accordingly and inserted these requirements as condition 2. 116. Secondly, I propose to insert a conventional condition, to be numbered 1, requiring the development to be carried out generally in accordance with the plans except as modified by the conditions. 117. I turn now to the disputed conditions (I have referred to the numbers of the conditions as those numbers appear in the draft, but I have altered the numbering in the final version). Draft condition A required that development consent be subject to concurrence from the RTA. Since concurrence has been furnished, I propose to delete this condition. 118. Condition 1(c) was drafted as follows: 1(c) the top floor of that part of the building containing the staff room shall be deleted and the pitched roof form of the adjoining terraces shall be continued; For the reasons set out in par 52, I propose to impose this condition, to be numbered 3. 119. Condition 1(e) was drafted as follows: 1(e) the planter boxes on the roof terrace shall be reduced to the minimum depth required to sustain vegetation that will reach a mature height not exceeding the height of the parapet; I consider that the appropriate species to protect views from Thomson Street are more appropriately addressed through the landscaping plan which is required by condition 5 and accordingly I propose to delete this condition. 120. Condition 1(h) was drafted as follows: 1(h) an open style mesh, with a minimum height of 2m, shall be erected behind the palisade fence of the western side of the playground; The council sought by this condition to prevent any balls being used in the playground from falling into Bourke Street through the palisade fence. The applicant opposed the condition because of the unacceptable visual impact it would create. In response, the applicant offered an alternate condition limiting the size of balls to those which would not fit between the bars of the palisade fence. I propose to delete this condition because I consider that an additional fence would be unsightly and unnecessary, and I am not persuaded that a limitation on the size of balls is required. 121. Condition 5 was drafted as follows: (5) That the proposed steel framed pergola in the playground area shall not overhang the western wall; For the reasons outlined in pars 58 - 59 this condition (to be numbered 9) will be amended by the addition of the following words: … and shall be restricted in size and location to that area shown as "extent of UV resistant polycarbonate sheeting" on drawing AR.DA.04. 122. This condition as drafted, related to the artwork panels on the western boundary wall. As I have set out in par 66, this is to be replaced with a palisade fence, and I have adopted the applicant's draft condition, now numbered 12. 123. Condition 11 was drafted as follows: (11) To minimise noise disturbance from the roof terrace, a teacher must supervise students using that area at all times. The applicant argued that this condition is not practical and the school can adequately manage any problems if they occur. I agree with this approach, and taking into consideration the agreement by the parties' noise experts, the condition will be deleted. 124. Condition 40 was drafted as follows: (40) That at no time shall the premises be serviced by articulated vehicles or vehicles bearing containers; The applicant argued that this condition should be amended by the addition of the words "except during demolition and construction" after the word "time" . The council pressed the condition on the basis that the use of articulated vehicles, at any time, would impact on the amenity of the area. For practical reasons and the limited time that any disturbances are likely to occur I accept the applicant's submission and will amend the condition (to be numbered 40) accordingly. 125. Condition 50 was drafted as follows: (50) That any connection to Council's stormwater system shall be subject to a positive covenant on the land title. A separate application for works on the public way related to the connection must be made to the Director of Public Works and Services and approval obtained prior to the approval of the construction certificate. The applicant/owner will be responsible for the full cost of the work, payment of fees, lodgement of a security deposit and public liability insurance; The applicant objected to the first sentence of this condition. I do not agree that a positive covenant for the stormwater system is required, and I propose to delete the first sentence from the condition, to be numbered 50. 126. Condition 56 was drafted as follows: (56) That all excavation, demolition and building work in connection with the proposed development shall only be carried out between the hours of 7.00am and 5.00pm on Mondays to Fridays, and 7.00am and 3.00pm on Saturdays and no work shall be carried out on Sundays or public holidays (where applicable, these restrictions do not apply to the maintenance of site cranes nor the use of mobile cranes which stand and operate from a public road, provided that a permit has been obtained from the Director of Public Works and Services Department for the use of a mobile crane); The applicant argued that the word "audible" should be inserted in this condition before the word "excavation" . This would allow activities such as cleaning, painting to be conducted outside the specified hours. The council opposed the amendment as ancillary activities, such as vehicle movements may affect the amenity of the area. I agree with the council's argument and will impose the condition (to be numbered 56) as drafted. 127. Condition 57 was drafted as follows: (57) That all proposed work shall be wholly within the boundaries of the site; The applicant argued that this condition should be deleted as works, such as underpinning may be needed to secure adjoining properties. The council argued that all work should be restricted to the subject site. In accepting that some activities may require work on adjoining properties I propose that the condition (to be numbered 57) should be amended by the addition of the following words after "site" : "unless approval has been granted by the relevant property owner". 128. Condition 61 was drafted as follows: (61) That new work including footings shall not project beyond the street alignment or boundaries of the allotment; Arguments similar to those for condition 57 were presented. Similarly, I propose to insert, in this condition, now numbered 60, the following words after the word "allotment" : "unless approval has been granted by the relevant property owner". Orders 129. In accordance with the foregoing, I make the following formal orders: (1) The appeal is upheld. (2) Development application No DA U99-014128 for the demolition of buildings and associated structures and the construction of a new primary school for SCEGGS Darlinghurst Ltd at No 215 Forbes Street, Darlinghurst is determined by the grant of development consent subject to conditions as set out in annexure 'A'. (3) The exhibits except ex 9 may be returned. I make no order as to costs. SCEGGS Darlinghurst Ltd v South Sydney City Council Property: 215 Forbes Street, Darlinghurst Conditions of Consent Annexure 'A' 1. Development shall be carried out generally in accordance with plans numbered AR.DA.00, AR.DA.01, AR.DA.02, AR.DA.03, AR.DA.04, AR.DA.05, AR.DA.06, AR.DA.07, AR.DA.08 and AR.DA.09 prepared by Howard Tanner & Associates and dated October 1999, except as modified by these conditions of consent. 2. The following information shall be submitted to the satisfaction of the Council's Director of Planning and Building: (a) A detailed schedule and colour samples/brochures of all external finishes, including: (i) external finishes to walls; (ii) roofing; (iii) balcony treatment; (iv) windows and doors; (v) entry gates and fencing; and such materials shall be sympathetic and consistent with the attributes and character of the site and surrounding area; (b) An energy performance report, prepared by an accredited energy consultant, containing the following information: (i) Details of the total anticipated energy consumption of the proposal on Meg Joules per annum per square metre (MJ/am2) estimated using a computer program. Appropriate computer programs are BUNYIP (CSIRO) or its recognised equivalent for commercial buildings; and NatHERS (CSIRO) or its recognised equivalent for residential buildings. (ii) Details of all passive and active energy efficient design measures that have been incorporated into the proposal. (iii) Details of how the energy efficiency of the building may be improved, the cost of such changes and their anticipated cost savings. (iv) Energy consumption details of: · Plant and equipment; · Fixed appliances, and · Lighting. (v) Details of the effect the proposal may have on any solar thermal collectors in the immediate vicinity of the proposal. (vi) Details of renewable energy sources in the proposal. 3. The top floor of that part of the building containing the staff room shall be deleted and the pitched roof form of the adjoining terraces shall be continued; 4. The height of the masonry component of the western wall of the car park/playground shall be no higher than 150mm above the finished level of the playground, the areas between the louvres will not be used for display and the areas between the vents must be constructed in a stone-like material to provide some stone texture. 5. A detailed landscape plan and specification for the site, prepared by a qualified landscape architect or designer, shall be submitted. The plan shall nominate hardworks and softworks, including decorative paving types, retaining walls, garden bed edging, furniture, pergolas and fencing, existing and proposed critical levels, drainage, planting types and species, plant numbers and sizes (minimum plant sizes are to be 75 litres for trees and 25 litres for shrubs) and irrigation. 6. Prior to issuing a construction certificate, it will be necessary to lodge with council a fee of $25,080 in the form of cash or non expiry bank guarantee being the building damage deposit for the public way. This deposit will be returned upon the satisfactory completion of the work approved under this application and the submission of all relevant certificates provided that there is no damage to the public way. A written request shall be made to the Council for the return of the deposit; 7. That prior to issuing a construction certificate, it will be necessary to produce evidence of the payment of the levy to the certifying authority, or the first instalment of the levy, required under the Building and Construction Industry Long Service Payments Act 1986, and ensure that the plans are suitably endorsed. The levy, to the value of $12, 720, or first instalment (as applicable), can be paid to the Council, providing that a completed levy payment form accompanies the payment. 8. The Magnolia Tree, proposed to be removed, shall be relocated (transplanted) to a suitable location on the site; 9. The proposed steel framed pergola in the playground area shall not overhang the western wall and shall be restricted in size and location to that area shown as "extent of UV resistant polycarbonate sheeting" on drawing AR.DA.04. 10. Construction of the new building shall not commence until such time as the site has been remediated and a site audit statement undertaken ensuring that that the site meets the appropriate health standards for the purpose of a primary school; 11. The remediation works shall be undertaken in accordance with Council's Contaminated Lands Policy; 12. The recessed artwork panels and masonry structure containing them and the panel to be occupied by the school crest must be deleted and replaced with palisade fencing to match the fencing elsewhere on the frontage to Bourke Street; 13. The use of the roof terrace shall be restricted to passive recreation purposes of senior students only between one hour prior to the commencement and one hour following core senior school hours. A separate development application shall be submitted for Council's consideration for use of the roof terrace for any other purpose; 14. No shade structures, canopies and the like shall be erected on the roof terrace; 15. Appropriate measures shall be undertaken to protect the quarry face and sandstone retaining wall during demolition, excavation and construction activities. Details in this regard shall be submitted with the construction certificate; 16. The external staircase on the southern elevation of the building (stair 2A) shall only be used for emergency egress purposes; 17. The Traffic Management Plan for student pick up/set down as detailed in the traffic study, prepared by Colston Budd Hunt and Kafes Pty Ltd dated October 1999, shall be implemented in consultation with Council's Public Works and Services Department; 18. The changes to traffic restrictions in Bourke Street required to enable the implementation of the Traffic Management Plan shall be subject to the approval of the South Sydney Traffic Committee and funded by the applicant; 19. The number of bicycle parking spaces shall be provided in accordance with the minimum requirements of Development Control Plan No. 11 – Transport Guidelines for Development for the primary school students and shall be designed in accordance with Type 2 facilities as detailed in AS 2890.3. Details in this regard shall be indicated on the plans submitted with the construction certificate; 20. The design of the car park and internal roads shall comply with AS 2890.1 including the requirements for a 2 metre splay for the driveway at the boundary alignment and 5% ramp gradient for the first 6 metres from the boundary to allow sight distance to pedestrians; 21. A warning light/lights and appropriate signage shall be erected in a suitable location to alert pedestrians walking in either a northerly or southerly direction along the footpath of Bourke Street of vehicles exiting the car park; 22. A maximum of 72 off-street car parking spaces shall be provided on the site, including a maximum of 22 car parking spaces in the proposed car parking area. Each space shall be a minimum of 5.4m x 2.6m or 5.5m x 2.5m, with a minimum headroom of 2.4m; 23. Of the 22 car parking spaces in the proposed car park, at least 2 spaces shall be a minimum of 3m x 5.5m (with a minimum headroom of 2.5m) and shall be clearly line marked and appropriately located for disabled driver's parking. The spaces shall not be stacked; 24. The surface of the car park shall be sealed to allow safe and clear operation of the car park, appropriately line-marked for spaces and to aid traffic circulation, prior to issuing an occupation certificate; 25. All street trees shall be retained and preserved and appropriately protected during demolition, remediation, excavation and construction activities by the erection of a safety fence or barricade around the drip line/ canopy edge; 26. The storage and handling of garbage shall comply with the requirements of Council's "Waste/Minimisation Fact Sheets"; 27. The garbage room shall be constructed in accordance with Council's "Waste/Minimisation Fact Sheets"; 28. The applicant shall enter into a commercial contract for the collection of trade waste; 29. The demolition and construction contractors shall implement a Construction Noise Management Plan to minimise the impact of noise from construction upon adjacent residents. The objective of the plan is to implement all practical noise control measures and all practical noise control procedures with the endeavour of controlling noise construction levels to meet the guidelines published by the EPA in Chapter 171 of the Environmental Noise Control Manual, as far as is practicable. The measures to be implemented include: (a) Selection of equipment and demolition and excavation methods so as to minimise the time taken by demolition and excavation; (b) Ensuring that all equipment used on site is fitted with residential class silencers and appropriate engine cowling. (c) Ensuring that the noise emission levels of all construction equipment on site comply with those generated by the equipment when new. Construction shall be limited to the following hours: (a) Mondays to Fridays 7.00am to 5.00pm; (b) Saturdays 7.00am to 3.00pm. 30. Within one month of completion of construction and commencement of use of the new buildings, noise measurements shall be carried out at the residences in Thomson Street during two separate lunch times to measure the Laeq.15min noise levels during those times. Where any of the Laeq.15min noise levels resulting from activity at the school exceed 57dBA, then the school shall implement further noise management or control measures to ensure compliance. These measures may include additional supervision of roof terrace activity or erection of a transparent noise barrier on the boundary adjacent to Thomson Street to provide noise shielding to the ground and first floors of the Thomson Street residences. All measurements shall be shown as a graph of the instantaneous sound pressure levels over time including all noise metrics. 31. Internal traffic noise levels shall not exceed those recommended in the NSW EPA Criteria for Road Traffic Noise. 32. Plans and specifications demonstrating compliance with the nominated standards and requirements for the following aspects of the development shall be submitted to Council or a certifying authority for approval prior to the issue of a construction or occupation certificate: (i) all proposed mechanical ventilation systems; (ii) car park ventilation systems; (iii) the garbage room. 33. Certificates of design compliance and system performance for the nominated components/aspects of the mechanical ventilation system shall be provided to the Council at the time of lodgment of plans certifying the design and upon commissioning of the mechanical ventilation system certifying performance. Certificates will be required prior to the issue of man occupation certificate. The certificate of performance shall be in accordance with section 5 of Council's Ventilation Code and be accompanied by details of the test carried out in respect of: (i) ventilation. 34. Noise and vibration from the use and operation of any plant and equipment and/or building services associated with the premises shall not give rise to "offensive noise" as defined under the Protection of the Environment Operations Act, 1997. 35. The applicant shall apply to the Director of Public Works and Services for the allocation of a street number (involves a fee); 36. The developer/owner shall accept responsibility for all costs associated with the design and construction of any works on the public way (including kerb, gutter, pavement, footpath paving, landscaping, drainage and alteration of public utility services), with such works to be carried out by Council's workforce (unless otherwise agreed in writing by the Director of Public Works and Services); 37. The applicant/owner shall fully meet the cost of any alteration or adjustment to existing public services affected by the proposed work, including the relocation of electric light poles or other services and the cost of Council's subsequent restoration of the pavement (unless other arrangements are made with the Director of Public Works and Services); 38. Before erecting any hoarding, an application must be made to the Director of Public Works and Services for a Builders Hoarding Permit (for approval under the Roads Act 1993). No excavation shall be carried out on the public way beneath or adjacent to the hoarding without the approval of the Director of Public Works and Services; 39. The developer shall make an application to the Public Works and Services Department for the issuing of new alignment levels to be adopted for the design of the building and other on-site works, prior to work commencing (Warning – To ensure that future vehicular or pedestrian access is possible you should not fix any boundary levels, either physically or in design drawings, until the alignment levels are issued); 40. At no time except during demolition and construction shall the premises be serviced by articulated vehicles or vehicles bearing containers; 41. At least one main entry without steps and useable by people in wheelchairs shall be provided from the public way to the lift lobby in accordance with the design requirements of the relevant Australian Standards; 42. Prior to the release of the construction certificate (and any excavation or building work on the public way), a Road Opening Permit shall be obtained from Council's One Stop Shop (required for approval under the Roads Act 1993); 43. The cost of signposting for alteration of any kerbside parking restrictions required to complement the new development shall be borne by the developer/owner. The work shall be done by the Council, unless other arrangements are approved in writing by the Director of Public Works and Services; 44. Prior to the release of the construction certificate, the developer/owner shall make an application to the Director of Public Works and Services for the provision of the necessary footway crossing and also bear the cost of the crossing and reinstatement of the footpath where any existing crossings adjacent to the site are no longer required (such approval is required under the Roads Act 1993). The work shall be done by the Council, unless other arrangements are approved in writing by the Director of Public Works and Services; 45. During demolition, excavation and building work, the public way shall not be obstructed by building materials or materials from the site in any way; 46. All loading and unloading of construction materials shall take place off street at all times unless the South Sydney Local Traffic Committee approves an on-street Construction Zone; 47. Stormwater shall not be connected to the sewerage system and shall be disposed from the site in accordance with Council's standard requirements for stormwater discharge. Stormwater shall not be connected to the sewerage system. All details of stormwater discharge shall be approved by a Council-registered stormwater certifier prior to the approval of the construction certificate; 48. Only clean and unpolluted water shall be permitted to discharge from the subject development/site into Council's stormwater drainage system, in accordance with Council's requirements; 49. The developer/owner shall provide a system of on-site detention of stormwater in accordance with Council's standard requirements for stormwater discharge. All details of on-site detention and discharge shall be approved by a Council-registered certifier prior to the approval of the construction certificate; 50. A separate application for works on the public way related to the connection must be made to the Director of Public Works and Services and approval obtained prior to the approval of the construction certificate. The applicant/owner will be responsible for the full cost of the work, payment of fees, lodgement of a security deposit and public liability insurance; 51. An application shall be submitted to the Director of Public Works and Services and approved before any existing tree on the site, covered by Council's Tree Preservation Order, is removed or lopped; 52. Only refuse skips by approved suppliers who comply with Council's Code for the Placement of Waste containers on the public way shall be delivered and placed on the public way (contact Council's One Stop Shop for a list of approved suppliers); 53. A certificate under section 73 of the Water Board (Corporatisation) Act 1994 in respect of the proposed development shall be submitted to Council prior to issuing a construction certificate. Sydney Water may require you to construct works and/or pay developer charges. Accordingly, you shall make immediate application to avoid problems in servicing your development; 54. A certificate shall be submitted from a registered certifier confirming that the design of the drainage system is in accordance with AS3500 Part 3 and "Code of Standard Requirements for the Discharge of Storm Water"; 55. All relevant sections of the BCA shall be complied with subject to any exemption under clause 187 or 188 of the Environmental Planning and Assessment Regulation 2000; 56. All excavation, demolition and building work in connection with the proposed development shall only be carried out between the hours of 7.00am and 5.00pm on Mondays to Fridays, and 7.00am and 3.00pm on Saturdays and no work shall be carried out on Sundays or public holidays (where applicable, these restrictions do not apply to the maintenance of site cranes nor the use of mobile cranes which stand and operate from a public road, provided that a permit has been obtained from the Director of Public Works and Services Department for the use of a mobile crane); 57. All proposed work shall be wholly within the boundaries of the site unless approval has been granted by the relevant property owner; 58. Despite any works to the public way implicit in the approval or anything indicated on the plans, no work is to be undertaken on the public way without a separate application to, and approval by, the Director of Public Works and Services; 59. An application for a construction certificate, with supporting plans, specifications and details demonstrating compliance with conditions of this consent and the Building Code of Australia shall be lodged and no building or excavation work shall be commenced until that application has been approved and at least two days written notice of the intention to commence work has been given to the Council; 60. New work including footings shall not project beyond the street alignment or boundaries of the allotment unless approval has been granted by the relevant property owner; 61. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards; 62. All excavations and backfilling must be executed safely and in accordance with appropriate professional standards; 63. All excavations must be properly guarded and protected to prevent them from being dangerous to life or property; 64. The demolition work shall comply with Australian Standard 2601-1991; Note 1: That the applicant shall be advised that this application has not been assessed for compliance with the Building Code of Australia or Local Government (Approvals) Regulations Note 2: That the applicant may be liable to prosecution under the Local Government Act, 1993, for a breach of an approved condition, or under the Clean Waters Act, 1970, if sediment, including soil, excavated material, building materials or other materials to fall, descend, percolate, be pumped, drained, washed or allowed to flow to the street, stormwater system or waterways or be placed in a position where any of the aforementioned may occur. The applicant shall ensure that its employees, agents, or sub-contractors provide and maintain sediment control measures and suitable site practices to protect the stormwater system or waterways from the ingress of sediment. A warning notice shall be erected on the site in a clear and conspicuous position and is available from Council. 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.