Land and Environment Court of New South Wales CITATION : Regent Street Developments Pty Ltd v Sydney City Council [2001] NSWLEC 29 APPLICANT Regent Street Developments Pty Ltd PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10424 of 2000 CORAM: Pearlman J KEY ISSUES: Development :- refusal - heritage - height - streetscape impact - amenity Central Sydney Development Control Plan 1996 Central Sydney Local Environmental Plan 1992 - Conservation of Heritage Items LEGISLATION CITED: Central Sydney Heritage Local Environmental Plan 2000 Central Sydney Local Environmental Plan 1996 Environmental Planning and Assessment Act 1979 s 79C CASES CITED: DATES OF HEARING: 19/02/2001; 20/02/2001; 21/02/2001 DATE OF JUDGMENT: 03/15/2001 APPLICANT Mr P J McEwen SC SOLICITORS Nesci & Romano LEGAL REPRESENTATIVES: RESPONDENT Mr A E Galasso (Barrister) SOLICITORS PricewaterhouseCoopers Legal JUDGMENT: IN THE LAND AND 10424 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 15 March 2001 REGENT STREET DEVELOPMENTS PTY LTD Applicant v SYDNEY CITY COUNCIL Respondent JUDGMENT Introduction 1. This is a class 1 appeal against the refusal by Sydney City Council of a development application made by Regent Street Developments Pty Ltd in respect of a property known as No 52 Regent Street, Chippendale. 2. No 52 Regent Street ("the site") is located adjacent to the Mortuary Station, which is a building of significant heritage value. I have concluded, for the reasons which I set out below, that the proposed development will have an unacceptable adverse impact upon the Mortuary Station and its setting, and on that ground, development consent should be refused. 3. I record that I was assisted in this appeal by Senior Commissioner Jensen, and that I had the benefit of an inspection of the site and its surroundings. The site and its surroundings 4. The site is located on the eastern side of Regent Street. In the 1840's the site was occupied by a Wesleyan Church and school, which was replaced in 1867 by a new and larger church. That church became St Albans Liberal Catholic church until 1965 and, after its demolition, the site was used as a Shell service station. The service station has been removed, and site now is vacant. It is currently being used as a car park. 5. The Mortuary Station is located immediately to the north of the site. Also on the north of the site is a small triangle of land fronting Regent Street, about 60 square metres in area. It is owned by the State Rail Authority ("the SRA") and the SRA has granted to the applicant a licence, terminable upon one month's notice, to use the triangle for the purpose of landscaping. 6. To the east, the site adjoins the Mortuary Station platform and railway land. To the south, its neighbour is 54 Regent Street, known as the Co-Masonic Temple. A development application seeking consent for the construction of a 25 metre high residential building on the Co-Masonic Temple site has been refused by the council, and the applicant has lodged a class 1 appeal to this Court which has not yet been heard. 7. Regent Street is, in this location, the boundary of the South Sydney local government area. The two-storey terrace buildings which are located on the western side of Regent Street, opposite the site, are accordingly under the control of South Sydney Council. 8. There are other surrounding features which are relevant to the assessment of the proposed development. Opposite the railway lines, on the east of the site, is Prince Alfred Park. Further to the north, past the Mortuary Station, is the Central Railway bus interchange, and, opposite, a 12 storey residential building which is a conversion of the former Milk Board building. To the west is the large area occupied by the Kent Brewery operated by Carlton & United Breweries Ltd. The proposed development 9. The proposed development is to be generally a 25 metre high residential flat building. It will comprise 60 residential units and two commercial units at the ground level at Regent Street. The residential units are a mixture of studio apartments, one, two and three bedroom units. There is to be a basement car park for 59 cars. 10. The proposed building is configured in the shape of an "H", with parallel wings separated by a central landscaped courtyard. As originally proposed, the building was uniformly of nine storeys, but the plans were amended to reduce the height of the north eastern corner of the proposed building by two floors and the south eastern corner by one floor. 11. I should add at this point that several objections to the proposed development were submitted to the council, including a lengthy objection from Carlton & United Breweries Ltd, and Mr D A Ford, that company's co-ordinator of environment and security, gave oral evidence. The issues 12. In its statement of issues, the council raised eight issues as follows: 1. Whether the proposed development is consistent with the aims, objectives and provisions of the: (a) Central Sydney Local Environmental Plan 1996; (b) Central Sydney Development Control Plan 1996, and (c) Central Sydney Local Environmental Plan 1992 - Conservation of Heritage Items, which seek to ensure that the design of new buildings: (a) present an appropriate design response to adjacent and surrounding development(s); (b) safeguard the significance of heritage items; and (c) contribute to the streetscape and in particular when considering all the above: 2. Whether the proposed development will have an adverse impact on important views of the adjoining heritage listed Mortuary Station; 3. Whether the proposed building will have an acceptable relationship with the adjoining buildings and streetscape in general; 4. Whether the proposed development is consistent with the aims, objectives and provisions of the Central Sydney Development Control Plan 1996 which seek(s) to ensure that residential apartments are provided with an adequate level of amenity; 5. Whether the proposed development complies with the Building Code of Australia having regard to: (a) the provision of appropriate setbacks; and (b) adequate means of emergency egress; and (c) whether or not compliance with the Building Code of Australia is likely to require a substantial alteration to the design of the building. 6. Whether the proposed development constitutes an over-development of the site. 7. Whether an easement for light and air over adjoining land in the ownership of the State Rail Authority is necessary to: (a) safeguard the future amenity of the residential apartments within the development; and (b) whether such an easement is likely to be obtained by the Applicant. 8. Whether the necessary consent of the owners of all land to which the Application relates has been obtained by the Applicant for the submission of the development application. 13. It is at once apparent that the most critical issue is the impact of the proposed development upon the Mortuary Station and the surrounding streetscape. Issues 1, 2, 3 and 6 all relate to this general issue, and, indeed, the case was conducted primarily in relation to it. Issues 4, 5 and 7 relate generally to the design of the proposed building. Issue 8 did not ultimately arise, because the SRA, whose consent was said by the council to be required, furnished a written consent to the development application. 14. It will be appropriate, therefore, to deal with the issues collectively in the two groups I have mentioned, but before doing so it is necessary to identify the relevant statutory provisions. The statutory controls 15. There are three relevant instruments. They are: (1) Central Sydney Local Environmental Plan 1996 ("LEP 1996"); (2) Central Sydney Development Control Plan 1996 ("DCP 1996"); (3) Central Sydney Local Environmental Plan 1992 - Conservation of Heritage Items ("LEP 1992"). 16. The Central Sydney Heritage Local Environmental Plan 2000 ("LEP 2000") was gazetted after the development application had been lodged. It was not tendered in evidence, but it is apparent from the expert report of Mr K M Brown, a specialist in urban design and heritage employed by the council, that, similarly to LEP 1992, it requires the consent authority to take into account the impact of the proposed development on the heritage significance of any heritage item. 17. LEP 1992 is relevant in considering the impact of the development upon the Mortuary Station, and I will deal with it when considering that impact. DCP 1996 provides a number of amenity controls. It is specifically mentioned in issue 4, and it is appropriate to deal with it when considering issues of design. For the present, it will suffice to note some particular provisions of LEP 1996. 18. LEP 1996 provides for a number of land use zones within Central Sydney, one of which is the City Edge zone, into which the site falls. That zone has a number of objectives, of which the following are relevant: (a) to encourage a mixed use, medium density area which will provide a physical transition between the City Centre zone and nearby lower density, mixed use and residential areas, (b) to encourage an increase in the permanent residential population through new residential development or the conversion of existing buildings and to ensure the maintenance of a range of housing choice, (c) to recognise the development potential of certain major sites within the zone and to encourage development of them which is consistent with other zone objectives, (h) to facilitate the conservation of items and areas of heritage significance. The proposed development is permissible with consent in the City Edge zone. 19. Importantly, LEP 1996 establishes height limitations and floor space ratios. Clause 32 provides in effect for maximum heights as shown on a height map, and in relation to the site, the maximum height is 25 metres. The proposed development complies with that control. Clause 35 provides for a floor space ratio control by reference to a floor space ratio map. The maximum floor space ratio applicable to the residential building proposed for the site is 5:1 (although according to the calculations of Mr M E Neustein, a consulting architect and town planner who gave evidence for the applicant, the floor space ratio applicable to the site is 4.8:1). The proposed development has a floor space ratio of 4.6:1, and accordingly complies with that control. 20. Compliance with those controls, especially the height control, is a major plank of the applicant's case. Mr McEwen SC, appearing for the applicant, contended that these controls demonstrate the planning objective which the council intends for the site. In Mr McEwen's submission, the council has had ample opportunity to amend those controls, but it has not done so. To support his claim, he pointed to the history of development and planning controls relating to the site. 21. That history is set out in the expert reports of both Mr W A Mackay, who is the council's area planning manager, and of Mr Neustein. The history may be summarised as follows: (1) The site was zoned City Centre in the Central Sydney Local Environmental Plan 1993, and no maximum height control was specified; (2) In 1995, a draft local environmental plan was proposed, which introduced the City Edge zone and proposed a maximum height control of 45 metres for certain areas, including the site; (3) However, in October 1995, the City Plan sub-committee recommended a maximum height of 15 metres in relation to an area which included the site. Its recommendation was not adopted; (4) In that year, 1995, development consent was given to demolish the Shell service station on the site and to remediate the site. That work was carried out; (5) In late 1996, development consent was granted in respect of a seven storey hotel, but the development was not carried out, and the development consent has lapsed; (6) In December 1996, LEP 1996 was gazetted, and, as I have earlier indicated, it set a maximum height control of 25 metres; (7) In 1998, a development application for approval of an eight storey apartment building was refused; (8) In October 1998, a heritage curtilage study concerning the Mortuary Station was furnished to the council by Mr W Mayne-Wilson, who is a landscape architect and heritage adviser. He considered the building height of 25 metres to be inappropriate, and recommended that the height of the site should be no taller than the Co-Masonic Temple; (9) LEP 1996 was amended in 2000, but no change was made to the height control relating to the site. 22. In Mr McEwen's submission, the history shows not only opportunities to amend the height control, but ample occasions which could have prompted the council to do so, and it is against that background that matters of heritage and streetscape must be considered. The Mortuary Station 23. The Mortuary Station became subject to permanent conservation order no 157 made on 2 October 1981 under the Heritage Act 1977. It is classified by the National Trust, and it is listed both on the State Heritage Register and the Register of the National Estate. It is also listed as a heritage item in LEP 1992. 24. Evidence on behalf of the council about the heritage significance of the Mortuary Station was given by Mr Mayne-Wilson, by Mr G A Pringle, a heritage officer with the New South Wales Heritage Office, and by Mr Brown. Evidence on behalf of the applicant about that significance was given by Mr R M Staas, a heritage consultant, and by Professor N D Quarry. 25. In a report prepared in 1997 in connection with the bus layover area to the north of the site, Mr Staas described the historical background to the Mortuary Station. It was built about 1868 as the city terminal and receiving station for special funeral trains carrying deceased persons and mourners from Sydney to the Rookwood Necropolis. The use of trains for funerals declined with the introduction of automobiles, and the funeral train service was discontinued in 1939. The Mortuary Station fell into disuse, but was restored in 1983 by the SRA. It has been used as a function centre, although, according to Mr Staas, it is currently unused. 26. In that 1997 report, Mr Staas described the heritage significance of the Mortuary Station in the following terms: The building has high levels of Cultural Heritage Significance for its values of Historic, Aesthetic, Social, Technological and Townscape qualities, and it intimately related to the wider heritage significance of the development of the Sydney railway system. The Former Mortuary Railway Station building and its immediate setting is highly significant as a very rare and intact example of a building type demonstrating a former way of life (and Death) in the Mid-Late Victorian Era … It is also important as a demonstration of the Victorian's use of new technology in meeting the practical needs of transportation and the central role played by the new railway in funeral processions for persons of all social classes. The building is an extremely fine example of masonry craftsmanship in the Gothic Revival Style built by John Young and as an important early work (1868) of the NSW Colonial Architect, James Barnet. The Station building is a prominent local landmark which is held in high esteem by the whole community. 27. This significance was generally echoed by the other heritage experts, although Professor Quarry's opinion was that it is "not a building to be revered - it is not an architectural icon". He said: Sydney's Mortuary Station, Regent Street, does not reach the high architectural levels of the true 14th century Gothic … nor does the Mortuary Station venture close to the grandeur of the nineteenth century European stations, against which it compares in scale to a cruet set on a table in the dining car … But the Station has its own diminutive character - an architectural confection to sweeten the sadness of the funeral procession from mortuary to cemetery. 28. It is clear, therefore, that the Mortuary Station is of significant heritage value, and hence the issue of whether or not the proposed development would adversely impact upon the Mortuary Station and the surrounding streetscape is critical. Heritage and streetscape impact (issues 1, 2, 3 and 6) The statutory background and the evidence 29. Clause 7(3) of LEP 1992 requires the council to take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the Mortuary Station. The relevant objective of LEP 1992 is as follows: 2. This plan aims to conserve heritage items on the land to which it applies by: (c) ensuring that, in the future, development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items, and the distinctive character that they impart to Central Sydney. The conservation of heritage items is also an objective of LEP 1996. 30. Mr Mayne-Wilson considered that the proposed development did not respond appropriately to the recommendations which he made in his 1998 study. He said that the proposed development "would visually overwhelm and dwarf" the Mortuary Station, and would replace it "as the focal point and landmark building in this precinct". His opinion was that the proposed development: … would provide, in fact, a brutal juxtaposition which would diminish a viewer's appreciation of the Mortuary Station, while its location against the palisade boundary fence along the Station's southern platform would virtually blot out the Stations' visual (and former functional) relationship with the adjacent railway. 31. As to the impact of the proposed development on the streetscape generally, Mr Mayne-Wilson's opinion was that it would detract from the character of the streetscape, and "would provide a discordant note in the character and rhythm of that streetscape". In this connection, he rejected landscaping and vegetation screening as an amelioration of any impact. 32. Mr Brown also rejected the proposed development as suitable or appropriate. His conclusion was as follows: The setting of Mortuary Station is regarded as central to its heritage significance. Rather than protecting its silhouette, and enhancing views towards it, the proposal would, if constructed, corrode the setting of the Station in the extreme. The rectangular skyline profile of the proposal, the large areas of blank wall and apparent disregard in the design of adjoining development all combine to convey a sense of indifference to context, the city's skyline, and the pedestrian domain. 33. Mr Pringle said that the Heritage Office does not support the proposed development. His opinion was that the height and proximity to the Mortuary Station of the proposed building would have "a severe adverse impact on the view of the Station" from the south and across the railway lines to the east, and the lowering of the eastern wing of the proposed building would, in his opinion, "do little to mitigate the impact from this perspective". He took into account the height of the Co-Masonic Temple, and the Wesleyan Church formerly on the site, and concluded that "[t]he historical curtilage of the Mortuary Station has therefore not been crowded by buildings of the scale proposed, which is considered to adversely affect its heritage significance". He thought that the building materials which are proposed would "accentuate the contrast" with the Mortuary Station, and that there would be "limited scope for substantial landscaping". 34. Mr Staas took issue with these views. His opinion was that the impact of the proposed development upon the Mortuary Station would be acceptable, and that "[t]here is no identified streetscape in this area which would warrant special consideration". He expressed the following opinions: (a) The site has development potential created by the council by reason of the zoning of the site and the height and floor space ratio controls. Mr Mayne-Wilson has ignored that development potential. Furthermore, the area is not likely to be preserved as it now it - redevelopment along Regent Street to St Paul's Square is likely to take place; (b) The design of the building, particularly its "H" shape, reduces the mass of the proposed building, has ensured that the prominent octagonal spire and fleche of the Mortuary Station are not obscured, and has provided adequate physical separation from the Mortuary Station; (c) Heritage buildings can exist in close proximity to new development and it is "this juxtaposition that gives the city its cosmopolitan character". In particular, "the Mortuary Station is of a sufficiently robust design to exist side by side with a contemporary foil as has been proposed in the design"; (d) Vegetation screening will also assist in ameliorating any impact. 35. Professor Quarry also supported the proposed development. He also held the opinion that the Mortuary Station has maintained its "architectural robustness" and that, accordingly, "[t]here is no need to immunise the Station against a supposed architectural infection by quarantining its location by invoking large preventative distances between it and nearby buildings, now or in the future". Furthermore, the proposed development would change the views of the spire of the Mortuary Station by "only a very minor extent". In giving oral evidence, Professor Quarry amplified his opinion. He thought that the architectural quality of the Mortuary Station was the crucial factor, but, given an appropriate facade treatment, there is no limit to the height to which an adjoining building could go without overwhelming the Station. 36. As to streetscape, Professor Quarry's opinion was that the existing buildings "are far from being of a homogenous architectural character" and that few of the buildings possess a worthwhile measure of architectural merit. The proposed development would have a "beneficial" impact upon the existing streetscape, "for it brings a building of good quality architectural merit into the neighbourhood". Professor Quarry did not rely on landscaping for this view - in giving oral evidence, he said he would support the proposed development if there were no surrounding trees. 37. Both parties endeavoured to support their respective positions by illustrations as to how the proposed development might look when constructed. Mr Mayne-Wilson and Mr Brown furnished photographs based on a "Modelscope" utilised in conjunction with the council's model of the city. The applicants relied upon photomontages. Both these types of illustration seem to suffer from optical deficiencies. On the site inspection, they were examined carefully against direct observation, and both seemed to understate the visual impact of the proposed building on the Mortuary Station. Accordingly, I place little weight upon them. Conclusion 38. Height is a crucial factor in assessing the impact of the proposed development upon the Mortuary Station as a heritage item. In this respect, the applicant, supported by the expert opinions of Mr Staas and Professor Quarry, relied heavily on the proposal's compliance with the 25 metre height limitation. But, as Mr Staas conceded in cross-examination, the height limitation is only one constraint. He accepted that another constraint was the potential impact upon the Mortuary Station. Indeed, the height limitation in LEP 1996 (cl 32) is expressly stated to be subject to LEP 2000 which I have referred to in par 16. And, as Mr Galasso, appearing for the council, stressed, it should not be overlooked that 25 metres is a maximum, not an immutable height mandate. The proposed building must be assessed under s 79C of the Environmental Planning and Assessment Act 1979. That means that all appropriate constraints must be considered. 39. I do not accept, therefore, that compliance with the height limitation, despite it having been promulgated by the council and remaining unchanged, should outweigh any adverse visual impact of the proposed development upon the Mortuary Station. As to that visual impact, I am persuaded by the evidence of Mr Mayne-Wilson, Mr Brown and Mr Pringle. I accept their respective opinions that a building of the height, bulk and scale of that proposed will adversely impact upon the Mortuary Station and its setting. 40. It seems to me that a building of a more modest height than 25 metres would better fit both the streetscape and the historical context. Mr Staas himself acknowledged in cross-examination that, if there was no available statutory height constraint, a contemporary building of the same height as the former Wesleyan Church or of the same height as the Mortuary Station would be one approach to the design of the proposed development. He thought that height limit might be three or four storeys, but he emphasised that, because of the actual height limitation, that point of view is hypothetical. But that point of view is consistent in general terms with the opinions of both Mr Mayne-Wilson and Mr Brown. And if the height constraint is only one factor in the assessment of the proposed development, then that notion of a more modest height should, it seems to me, prevail. Furthermore, as Mr Brown pointed out, the immediate location or setting of the Mortuary Station (being the area to the south up to St Paul's Square, the opposite streetscape, and the area to the north as far as Lee Street) is almost uniformly two and three storey development. This is so, despite Mr Staas and Professor Quarry pointing out that the development in that location is neither architecturally significant nor likely to remain unaltered. 41. The heritage significance of the Mortuary Station and its setting cannot be overestimated. It is not simply a matter of its diminutive but robust architectural form. It is a matter of its setting and its historical context both on its own account and as part of the adjacent railway complex. Preservation of views of the octagonal spire and fleche are not the only criterion which must be satisfied. Regard must be had to views of the whole of the Mortuary Station in its setting. 42. Although Mr Staas placed some emphasis on existing and future vegetation screening, I am not persuaded that, in this case, it is an appropriate solution to the visual impact of the proposed development. I accept Mr Pringle's opinion that "… views of the Station to the south along Regent Street are shielded by foreground foliage during summer months, but during the autumn and winter months a tall building immediately behind the Mortuary Station is likely to be highly visible". 43. I conclude for these reasons that the proposed development does not meet the objective set out in the 1992 LEP. It will not be sympathetic to the Mortuary Station and its setting, and it will detract from its heritage significance. This conclusion justifies the refusal of development consent. That result means that it is not strictly necessary to consider the other issues that were raised, but they were the subject of evidence and submissions, and it is therefore appropriate that I deal with them. The design issues (issues 4, 5 and 7) 44. Section 6 of DCP 1996 deals with residential buildings and serviced apartments. It sets out the following objective: To enhance the amenity of residential buildings and serviced apartments in terms of daylight, sun access, ventilation, privacy, outlook, noise, safety, recreation facilities and storage. 45. It was the council's case that the design of the proposed building fails to comply with various provisions of DCP 1996 in relation to apartment size, privacy, setbacks, floor to ceiling height and open space. I deal with each in turn: (1) apartment size: Mr Mackay's evidence was that most of the one bedroom units and all the two bedroom units fail to comply with the minimum size requirements specified in cl 6.1.34 of DCP 1996. Mr Neustein provided furnishing diagrams which were intended to demonstrate that the non-compliance was not critical. I accept Mr Neustein's evidence and I would not refuse development consent on this ground; (2) privacy: Clause 6.1.10 of DCP 1996 deals with visual privacy. Mr Mackay thought that there would be poor levels of privacy in relation to the first floor units and north facing units that define the centrally located entrance space. Furthermore, he noted that the unit on the south west corner of the first floor has a floor level of only 1.6m above Regent Street, and that the balcony in the south west corner projects over that street. Mr Neustein said that the units would preserve visual privacy, and appropriate screening is to be provided. Professor Quarry supported Mr Neustein's opinion, maintaining that problems of privacy could be mitigated by the provision of retractable security shutters at first floor level. However, the projection over Regent Street could interfere with passing pedestrians. These are matters which, in my opinion, could be satisfactorily dealt with by appropriate conditions of consent; (3) setbacks: Clause 2.3.7 of DCP 1996 provides that the principal windows or balconies of residential buildings must be set back at least six metres from side boundaries. Mr Mackay pointed out that the proposed building fails to comply with this requirement on its north and east facing elevations. Mr Neustein noted that non-compliance in his compliance tables, but made no comment about it. However, Mr Mackay stated that an alternative approach is to secure the provision of an easement for light and air over adjoining premises in the ownership of the SRA, but he indicated that such an easement was not likely to be obtained. Mr McEwen contended that an easement was not necessary. The SRA is well aware of the proposed development (it has furnished a licence of the triangle area, as well as its consent to the development application) and is not likely to carry out a development which would deprive residents of the proposed development of an appropriate level of amenity. I do not consider that this non-compliance would justify refusal of development consent; (4) floor to ceiling height: Clause 6.1.20 of DCP 1996 requires a minimum floor to ceiling height of 2.7 metres in respect of living rooms and bedrooms. Mr Mackay calculated that the floor to ceiling heights in the living areas of the first floor north facing units are approximately 2.4 metres. Mr Neustein considered that the whole of the proposed development complied with this requirement. The different calculations between the two experts was not resolved, although Mr Mackay pointed out various amendments which could be made to achieve compliance. This issue could be dealt with by imposing an appropriate condition of consent; (5) open space: Mr Mackay acknowledged that open space is provided by way of landscaped areas at ground floor level and by way of balconies, but he claimed that it was practicable to utilise the roof top areas for recreational facilities (as provided in cls 6.1.17 and 6.1.18 of DCP 1996) and this had not been done in the design of the building. Furthermore, cl 6.1.19 of DCP 1996 encourages the use of set back areas for residents, but, although at ground level these areas are landscaped, they are contiguous with the commercial units and unlikely therefore to provide recreational opportunities for residents. Mr Neustein's opinion was that utilisation of the roof top areas was not practicable as they are not trafficable and their use would infringe the height limitation. I regard Mr Mackay's evidence as demonstrating minor non-compliance with DCP 1996, and I would not refuse to grant development consent for this reason. 46. Issue 5 dealt specifically with emergency egress and potential non-compliance with the Building Code of Australia. Evidence on this issue was given by Mr S M Kelly, a specialist building surveyor in the employ of the council. However, the parties' experts conferred during the course of the hearing, and it was agreed between them that amendments to the design of the proposed building could be made to achieve a performance based plan of egress, and that a condition of consent could be imposed to ensure that the appropriate design amendments were satisfactorily made. Conclusion 47. As I have explained, I have concluded that the proposed development should not be approved by reason of its adverse impact upon the Mortuary Station and its setting. 48. Accordingly, my formal orders are as follows: (1) The appeal is dismissed. (2) Development application for the construction of a nine storey residential building comprising 60 apartments, two ground floor commercial units and basement parking at 52 Regent Street, Chippendale is determined by the refusal of consent. (3) The exhibits may be returned. 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.