Smartcom Solutions Pty Ltd v Sydney City Council [2005] NSWLEC 342

Land and Environment Court of New South Wales

CITATION : Smartcom Solutions Pty Ltd v Sydney City Council [2005] NSWLEC 342

APPLICANT Smartcom Solutions Pty Ltd

PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 10833 of 2004

CORAM: Hoffman C

KEY ISSUES: Appeal :- Subdivision of land - major alterations and additions to a heritage item in a row of heritage items in a conservation area

Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997 LEGISLATION CITED: South Sydney Council Development Control Plan No. 11 - Transport Guidelines 1996 South Sydney (Heritage Conservation) Development Control Plan 1998 State Environmental Planning Policy No. 10

DATES OF HEARING: 30-31/05/2005 and 02/06/2005 EX TEMPORE JUDGMENT DATE : 06/02/2005

APPLICANT Mr C McEwen, SC SOLICITORS Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr D Miller, barrister SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

2 June 2005

10833 of 2004 Smartcom Solutions Pty Ltd v Sydney City Council

JUDGMENT

1 This is a Class 1 appeal No. 10833 of 2004 between Smartcom Solutions Pty Limited v the Sydney City Council in relation to conditions of deferred commencement consent in DA UO2-00848 issued by South Sydney Council on 17 February 2004 on a 2 storey Victorian Terrace house and outbuilding at No. 4 Moore Park Road, Paddington. 2 The consent was issued following a review of an initial refusal dated 15 July 2003. The plans were altered for the review by lowering the roof, changing the internal layout of the proposal, deleting a swimming pool and communal courtyard and revising the two terrace houses at the rear so they appeared from the street to be two storey with a third storey in the roof with dormer windows versus the original design that appeared as a full three storeys. The main building was proposed to have 6 one-bedroom units on 4 levels. 3 The proposal before the Court was a modified version of the plans the council dealt with in the review. The plans partly demolished a heritage item at 4 Moore Park Road and built into the main building 5 one-bedroom units on four storeys. At the rear which had frontage to Josephson Street, Paddington the proposal demolished an outbuilding and the rear wing of the main house and erected two attached three-storey terrace houses. 4 The terrace houses were designed with one car space each on site. The units in the main house had no parking but the evidence was that they would qualify for resident parking stickers for cars owned by the residents. Each terrace house could have one on-street car sticker also. 5 The proposal included subdividing the rear into two Torrens title lots, one for each terrace house. 6 The consent issued by the council on the plans for the review, refused the subdivision and required changes to the plans mainly aimed at achieving better conservation of the heritage item and better sympathy to the conservation area. These conditions necessitate inter alia the reduction of units in the main building from 6 to 4 in number, the retention of the existing roofline and façade to Moore Park Road and their restoration, the retention of the existing entry foyer and stair hall and stairs and landings, and the reduction of the two terrace houses to be one storey plus rooms in the roof. 7 The issues were: 1. Whether the proposed development complies with the objectives of the Strategy for a Sustainable South Sydney , particularly related to local context of the building, environmental performance of the building and impact on neighbouring residents. 2. Whether the proposed development complies with cl 7(c) of the South Sydney Local Environmental Plan 1998 as a result of the proposal's non-compliance with the goals and objectives of the Strategy for a Sustainable South Sydney . 3. Whether the proposed development complies with cl 12 of the South Sydney Local Environmental Plan 1998 as the proposal fails to provide for an enhancement of amenity. 4. Whether the proposed development complies with the Heritage aims established in cl 22 of the South Sydney Local Environmental Plan 1998 . 5. Whether the proposed development should be approved in the absence of the statement of heritage impact or conservation management plan under cl 23 of the South Sydney Local Environmental Plan 1998 . 6. Whether the proposed development complies with the South Sydney (Heritage Conservation) Development Control Plan 1998 given that the subject dwelling is an identified heritage item under Sch 2 of the South Sydney Local Environmental Plan 1998. 7. Whether the proposed development complies with cl 24 of the South Sydney Local Environmental Plan 1998 as a result of the proposal's negative impact on the setting and curtilage of heritage items. 8. Whether the proposed development complies with the Residential 2(b) Zone under the South Sydney Local Environmental Plan 1998 as the proposal will detract from the amenity of the adjoining and surrounding residents. 9. Whether the proposed development complies with the intent of cl 28 of the South Sydney Local Environmental Plan 1998 as the proposal is an overdevelopment of the site. 10. Whether the proposed development complies with Pt E 2.2 of the South Sydney Development Control Plan 1997 as the proposed floor space ratio is in excess of the maximum permissible floor space ratio and represents an overdevelopment of the site. 11. Whether the proposed development complies with Pt E 4.1 of the South Sydney Development Control Plan 1997 as the proposal will allow overlooking and a loss of privacy for adjoining development. 12. Whether the proposed development complies with Pt E 5.1 of the South Sydney Development Control Plan 1997 as the proposal does not receive the appropriate level of direct solar access. 13. Whether the proposed development complies with the requirements of the South Sydney Council Development Control Plan No. 11 Transport Guidelines 1996 in that the provision of car parking is inadequate. 14. Whether the site is suitable for the development for the purposes of s 79C(1)(c) of the Environmental Planning and Assessment Act 1979 . 15. Whether the proposal will have an unacceptable impact on the built environment for the purposes of s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 . 16. Whether any matters raised by objectors warrant the refusal of the application. 17. Whether the proposal is in the public interest. 18. Whether the proposed development complies with the following provisions of the South Sydney Development Control Plan 1997: (a) Pt E 2.5; Particulars The proposed fence does not respect the heritage context or character of the streetscape and creates security issues; (b) Pt F 1.2.2; Particulars The front setback of the Josephson Street development does not respect the existing setbacks and that there is no provision for a side setback; c) Pt F 1.4.1; Particulars The proposed front dormer windows are inconsistent with the design guidelines. 8 The proposal was also subject to State Environmental Planning Policy 10 for the retention of low cost rental accommodation. The State authority, DIPNR, had conceded the cessation of the existing use of the premises as a low cost boarding house. A boarding house is a permissible use with consent in the 2(b) Residential Medium Density Zone so the existing use legislation under the Environmental Planning and Assessment Act 1979 does not apply. Also it was realised by the parties just prior to the hearing that State Environmental Planning Policy 65 for the design quality of residential flat development also applied, and late reports were prepared by the parties' planning experts. 9 The respondent's evidence was heard from Mr J Poulton, heritage specialist City of Sydney, and Ms R Fisher, strategic planner and senior assessment officer, City of Sydney. 10 On-site the Court heard from a number of objectors, some representing the Paddington Society, and another, a Mr G Conomos the neighbour on the east of the site who owned 6 and 8 Moore Park Road. One of the houses he lived in, the other he had an office in and rented part out. The owner of the Captain Cook Hotel which was the western neighbour of the site also spoke. 11 The applicant's evidence was heard from Mr R Fleming, consultant town planner and Mr P Rappaport, consultant architect and heritage consultant. 12 Mr S Cooper, acoustic expert attended the hearing and his report was tendered in regard to traffic noise and other noise attenuation required by Roads and Traffic Authority under a specific clause of the statute. Draft conditions on noise were prepared that the applicant agreed to. The only matter the respondent pressed was that the conditions would require sealing in of windows to Moore Park Road so that those rooms would need air-conditioning. This was not covered in the plans and the equipment and duct work may affect the heritage aspects of the case. 13 Mr Conomos produced extracts from the Building Code of Australia and Australian and New Zealand Standard 2918.2001. He said their requirements would mean the proposed raising of the existing roof of the main building would bring the gable and ridge top to abut the tops of his triple flue chimney. All three fireplaces were used. The proposal he said would make the chimneys non-compliant with the Code and Standard and the fireplaces would not operate correctly due to wind vortexes caused by the proposal that would affect the flue drafts. 14 The applicant also had objections to some draft conditions of the council. A further matter was conflict between the parties about when a Heritage Impact Statement was requested by the council; and, did the lateness of its supply just before this hearing deny the objectors and the previous assessment processors consideration of it in the two public exhibitions already held. 15 There being no preparation for these matters by one party or the other prior to the hearing, it was agreed if they are to play a role in my final decision, the parties would be called back. 16 The objectors from the Paddington Society said they fully supported Mr Poulton's and Ms Fisher's evidence. 17 Mr Conomos also supported their evidence, and apart from the chimney, added the following: 1. The floor space exceedance created a bulk of building in the backyard area which was contrary to the open space provided by the existing large backyards behind the large terraces along Moore Park Road. His backyard and many of the neighbours had large trees and vegetation that provided a leafy green outlook into their northern backyards. The proposal would create a building mass with very little chance for vegetation that would totally change that outlook and character. 2. Shadows created by the proposal would overshadow his backyard in the afternoon, whereas at the moment he got sun. 3. The four-storey elevation of the main building of the proposal would dominate the amenity of his backyard. The top two storeys of the proposal were above the existing eave line of the existing house on the site and about two and a half storeys above Mr Conomos's rear eave line. 4. Privacy screens on the proposal which were said to stop direct overlooking would only do so within the proposed development. Views into his backyard would still be possible from the upper balconies of the proposal and the balconies were off the living rooms and bedrooms of the proposal. 5. Noise from activities in the courtyards and living rooms and balconies of the proposal could potentially disturb the quiet of his bedrooms facing the rear yard. 6. A huge jacaranda tree in Mr Conomos's land just beside the common boundary with the proposal must be affected by the excavation and construction. No account of that appeared to have been taken in the development application. 18 The Captain Cook Hotel owner was concerned about the implications of the demolition of the existing buildings on the subject site that had blank masonry two storey walls facing the hotel. The demolition of the rear two storey wing of the main building on the site, would open up to the hotel, the proposed four storey north elevation of the main building with its living rooms and bedrooms and courtyards between it and the two new terraces. Only a two metre high courtyard wall was proposed on the boundary where now there was a two-storey masonry wall. Noise of hotel activities could impact on future residents of the proposal and could cause actions against the hotel to restrict its activities. 19 Miss Fisher's evidence was in summary: The permitted floor space ratio was 1:1. The existing main building on the site had a floor space ratio of about 1.2:1. The proposal, as an average, was 1.6:1, but with the subdivision the main building on the proposed lot 1 would become 1.99:1, or nearly double the permissible floor space ratio. The two terrace houses would become 1.24:1 and 1.3:1 on their respective allotments. All were well in excess of the control. 20 The permitted maximum height was 6 m measured to the ceiling of the top most floor. The existing main building was 7.2 m to the ceiling of the topmost floor. The proposal is 12.2 m to the ceiling of the fourth floor and even the two terraces were 8 m to the ceiling of the third floor. 21 The controls of floor space ratio 1:1 and height of 6 m were in a Development Control Plan and were more flexible than statutory limits. The council had in April 2004 resolved to interpret them as maxima. Nevertheless exceedances of them could be agreed but only if the objectives and performance criteria of the statutes, the Development Control Plans, the environmental planning policies and the heritage statutes and controls were achieved. 22 In the case of the floor space ratio exceedance, Ms Fisher said the original consent had required, in return for any bonus floor space, the commitment to public domain improvements as allowed under the controls. No offer on that matter had been made by the applicant and in any case the conditions of consent would have reduced the floor space ratio well below what was before the Court in this appeal. 23 In Ms Fisher's opinion the exceedances on floor space ratio and height in this case had led to the proposal not complying with many other important aspects, namely: (a) Shadows. No direct sun could get to the living and dining and kitchen of either terrace house, winter or summer. (b) No direct sun could get to the private open space courtyards of either terrace house in midwinter when the control required that 50 per cent of the area of the courtyards should get direct sun for at least two hours between 9 am and 3 pm midwinter. (c) The privacy fence had to be of such a height between the terrace house courtyards and the ground floor courtyard of unit 1 in the main building that its courtyard would probably get no sun midwinter either, although the northern windows of unit 1 would get sun. (d) The applicant had provided only a section through the proposal to indicate shadows rather than full plan diagrams. The previous shadow plans of the original development application that had different buildings on it were not adequate to assess the proposal beyond the above conclusions. (e) Communal and private open space. The control required at ground level, 10 sq m as communal or private open space per one bedroom unit. So the main building required 50 sq m. There is no communal open space in the design. The existing front garden to Moore Park Road is on the south side of the building in permanent shadow and beside such a noisy road it could not be used as communal open space. Only unit 1 had a courtyard. (f) In addition to that control there is a requirement for above ground units to have each 8 sq m minimum balcony with a minimum width of 2 m directly off living rooms. Units 2 and 3 had balconies of 2.7 sq m each that are only 1.35 m wide. Units 4 and 5 have balconies of 4.7 sq m each, that are only 1.35 m wide. None of them comply. The only large balconies are those of the heritage façade facing Moore Park Road and they are on the south side in permanent shade and off bedrooms, so they cannot be accepted as compliance with the control. (g) Visual and oral privacy. Visual privacy within the development is largely controlled by a system of privacy screens masking view angles, or by obscured glass in windows. However, the separation distances in the Development Control Plan include not only visual, but noise and aural privacy reasons. The Development Control Plan requires 12 m between habitable rooms. On the ground floor the separation is 7 m and 9 m between the ground floor terrace house living rooms and ground floor unit 1. At the first floor, units 2 and 3 kitchens and balconies, the separation to the ground floor terrace house living rooms is 6 m and 7.5 m because of cantilevered structures at the first floor level. Also at the first floor level between the terrace house bedrooms and units 2 and 3 kitchens and balconies the separation is 8 and 10 m. Some windows of the proposal were also less than 12 m from guest room windows of the Captain Cook Hotel that accommodated backpackers at the time of the hearing. 24 Mr Cooper noted, that as an existing boarding house, noise standards for dwellings did not apply. But for the proposal of residential units and terrace houses, the standards would apply. He drew the Court's attention on-site to noise from the hotel of refrigeration equipment and/or kitchen exhausts that were beside the rear of the proposal and could be heard in the backyard of the site during daytime elevated background noise levels. He expressed an opinion that the noise may affect the proposed dwellings that would be close to the equipment once the solid masonry wall of the rear wing of the main building was demolished. 25 No NaTHERS report was available to indicate if the proposal would reach the required three and a half star rating for energy efficiency. 26 Car parking: Ms Fisher said there were two car spaces provided, one for each terrace house and none for the five new units, nor any bicycle storage as required by the Development Control Plan. 27 At 0.5 cars per one bed unit, plus one visitor's space per six units, the development needed another 4 car spaces plus 3 bicycle storage spaces. 28 Ms Fisher maintained the credit for existing car parking demand created by the boarding house could not be claimed for several reasons related to the Development Control Plan provisions. In the end the primary reason was under Development Control Plan 11 cl 3.2.2. Credits were not possible for development where existing buildings were extensively changed, that is, complete gutting of the building. She said the existing buildings were to have demolition of the existing stable and the rear two-storey wing of the house, and removal of most of the insides of the buildings except some structural walls. Even the roof had to be removed and a new one put on. That constituted complete gutting, Ms Fisher said. 29 Also there was a resident parking scheme in place for the local area that was necessitated by very high parking demand in the streets. On Moore Park Road near the site was designated "no parking" due to the heavy traffic conditions. Immediately behind the site was "no parking" on the corner of Josephson Street and Selwyn Street. Josephson Street was closed between Selwyn and Flinders Street to create a pedestrian piazza, as it was called during the hearing. As a result Josephson turned into Selwyn behind the site and due to the need to allow vehicles to the service access of the hotel and into the rear gates of the site, there was a "no parking" zone. Any extra cars, except the two on-site, would add to the heavy local parking demand attested to by the resident objectors, Ms Fisher said. 30 The Development Control Plan also said: