Land and Environment Court of New South Wales CITATION : Newtown No. 1 Pty Ltd v Marrickville Council [2006] NSWLEC 625 APPLICANT Newtown No. 1 Pty Ltd PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 11600 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Mixed use commercial/residential/retail development, SEPP 1 objection to FSR, height/massing effects, heritage, streetscape, public interest Marrickville Local Environmental Plan 2001 Marrickville Local Environmental Plan 2001 (Amendment No. 25) Heritage Marrickville Development Control Plan No. 19 - Parking Strategy Marrickville Development Control Plan No. 27 - Waste Management Marrickville Development Control Plan No. 28 - Urban Design Guidelines for Business Centres LEGISLATION CITED: Marrickville Development Control Plan No. 29 - Contaminated Land Policy and Development Controls Marrickville Development Control Plan No. 31 - Equity of Access and Mobility Marrickville Development Control Plan No. 32 - Energy Smart Water Wise Marrickville Development Control Plan No. 34 - King Street and Enmore Road Heritage and Urban Design Marrickville Development Control Plan No. 38 - Community Safety Marrickville Section 94 Contributions Plan 2004 DATES OF HEARING: 06/06/2006 and 29/06/2006 DATE OF JUDGMENT: 10/06/2006 APPLICANT Mr S Austin, QC Dr S Beverling, barrister SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Wright, barrister Instructed by: Mr G Christmas, Principal Solicitor Of: Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C Date 6 October 2006 11600 of 2005 Newtown No. 1 Pty Ltd v Marrickville Council JUDGMENT Background 1 This appeal was lodged against council's deemed refusal of a development application proposing the construction of a mixed residential/commercial/retail development at 359 - 361 King Street, Newtown. It involves the demolition of all structures on the site, except an existing terrace dwelling fronting Bailey Street, which forms part of the site. 2 For the appeal a number of issues were identified, which for convenience can be summarised as follows: o Bulk and scale, in terms of excessive FSR and building massing, o Building height, o Streetscape, in terms of heritage facade treatments, o Car parking, o Access, o Private open space, o Public interest. The site 3 The subject site is known as 359 - 361 King Street and 2 - 6 Bailey Street, Newtown, and is located on the north-western side of King Street, between Goddard Street and the intersection of King Street and Enmore Road. The site also has secondary frontages to Bailey Street and a right-of-way access to Enmore Road. 4 The site comprises 5 lots described as Lot 1 in DP 213421, Lots 8 and 9 in DP 57626, Lot 10 in DP 786848 and Lot 2 in DP 201521. It is irregular in shape with generally level ground over the entirety of the site. It has a 12.31 m frontage to King Street, a frontage to Bailey Street of 13.12 m and a site area of 1215.7 sq m and right of way for pedestrians and vehicles to Enmore Road. (Refer sketch in Attachment A). 5 The majority of the site is currently vacant. However the properties at 2, 4 and 6 Bailey Street contain a row of 3 brick terrace houses. Number 6 Bailey Street is to be retained as part of the proposed development and contains a part one/part two-storey terrace with a two-storey addition to the rear. 6 Currently, the only physical vehicular access to the site is via an existing 6.565 m wide right-of-way over No. 24 Enmore Road to the rear of the site. This is adjacent to the Buddist Centre. 7 The portion of the site fronting King Street is joined to the immediate north and south by a row of 2 and 3 storey attached commercial buildings with continuous awnings over the footpath. These buildings are generally occupied by retail uses at the ground floor level, with commercial/residential uses above. 8 To the east, on the opposite side of King Street, the site contains a 3 storey rendered building known as " St Georges Hall". 9 The rear of the site, including that part with frontage to Bailey Street is adjoined to the immediate north by a two-storey brick building at No. 24 Enmore Road, occupied by the Buddhist Centre and a Caltex service station located on the corner of Enmore Road and Bailey Street. 10 The rear portion of the site fronting Bailey Street is adjoined to the immediate south by No. 8 Bailey Street, a two-storey terrace, similar in scale and form to the existing buildings on the site at 2-6 Bailey Street. 11 Further south is a single storey brick substation and a row of attached 2-storey terraces. The proposal 12 This proposal involves: + retention of an existing terrace dwelling at No. 6 Bailey Street and the demolition of all other existing improvements, + the construction of a mixed residential/commercial/retail development containing 1 retail premise, 9 commercial suites, 22 residential apartments (in addition to the existing development dwelling at No. 6 Bailey Street which is to be retained) with basement car parking for 24 vehicles, + the proposed development has a maximum height of 5 storeys above existing ground levels in King Street, with the highest point being RL 49.9. The development adjoining to the south-western boundary at No. 363 King Street has a maximum height of RL 44.2 to the ridgeline of the roof and RL 41.91 to the top of the parapet wall on the front boundary. The building adjoining the north-eastern boundary at No. 357 King Street has a maximum height of RL 44.1 to the top of the parapet wall on the front boundary. The proposed floor space ratio (FSR) is in the order of 2.067:1. + strata title subdivision of the development, + all vehicular access to the proposed basement car park is via a 3.9 m - 4.8 m wide driveway from Bailey Street. + a shared pedestrian and vehicular access way is also proposed via an existing right-of-way over No. 24 Enmore Road, Newtown. Planning controls Marrickville Local Environmental Plan 2001 13 The site is zoned Business 3A and the proposal is permissible with consent. The objectives of this zone are stated under cl 13 as follows: (a) to identify areas suitable for business and commercial activities, and (b) to permit a variety of ancillary and complimentary land uses, and (c) to facilitate residential development in conjunction with other permissible uses in the zone. 14 Other relevant clauses include: * Clause 28 (aircraft related noise); * Clause 33 (floor space ratios); in this General Business 3(A) zone the maximum permissible floor space ratio is 2:1; * Clause 55 (heritage); * Clause 58 (waste management); * Clause 59 (energy, water and stormwater efficiency); * Clause 60 (landscaping of biodiversity); * Clause 62 (community safety); * Clause 64 (accessibility). Marrickville Local Environmental Plan 2001 (Amendment No. 25) Heritage 15 This has the effect of including the King Street frontage of the property into a Heritage Conservation Area. Marrickville Development Control Plan No. 19 - Parking Strategy Marrickville Development Control Plan No. 27 - Waste Management Marrickville Development Control Plan No. 28 - Urban Design Guidelines for Business Centres Marrickville Development Control Plan No. 29 - Contaminated Land Policy and Development Controls Marrickville Development Control Plan No. 31 - Equity of Access and Mobility Marrickville Development Control Plan No. 32 - Energy Smart Water Wise Marrickville Development Control Plan No. 34 - King Street and Enmore Road Heritage and Urban Design Marrickville Development Control Plan No. 38 - Community Safety Marrickville Section 94 Contributions Plan 2004 The evidence 16 In response to the identified issues a number of expert reports were prepared, resulting in conferencing between the respective experts and preparation of final joint statements, as follows: Heritage: o Ms R Hedditch, heritage and urban design adviser with Marrickville Council, o Mr R Staas, heritage consultant. Planning: o Mr J Erken, town planner/Marrickville Council o Mr S Harding, planning consultant. Traffic: o Mr J Bertacco, development engineer/Marrickville Council, o Mr R Varga, traffic consultant. 17 The main issue concerns the bulk and height of the proposal, within the context of heritage considerations for King Street and the distribution of building mass away from the street frontage. In particular, this relates to the buildings presentation to King Street and the acceptability of the transitional increases in building height. The associated issues deal with traffic access and various amenity impacts relative to the neighbouring properties. 18 I note that some amendments were undertaken in the course of the appeal. These include alterations resulting in a reduction in the FSR, revision of the King Street facade in response to the heritage controls and also provision of additional areas for deep soil planting and retention of an existing Blackbean tree. 19 Consequently, the principal unresolved elements of the building concern its massing and height. In particular this relates to the upper 5th residential level and its relationship to the adjoining buildings. This is notwithstanding that it is recessed some 10 m from King Street, to which it has a 3 storey presentation. 20 Of relevance, DCP 28 provides in Pt A2 the following controls: Marrickville's business centres are characterised by retail shopping strips, formed by a unique interaction between local topography, street layout, subdivision pattern and building form, massed up to the full height at the front street alignment and stepping down towards the rear. The combination of these factors ensures that Marrickville's business centres are highly visible in the urban landscape. Buildings are generally massed up to 2-3 storeys at the street, with shop frontages of 6-15 metres in width. Most buildings in Marrickville's business centres reinforce the ridge topography, contributing to the visual appreciation of Marrickville's retail centres. The treatment of building envelopes, that is, how high, how far set back from the street alignment, general bulk and massing, is therefore critical. Facade treatment, the line of continuous awnings and the general vertical building proportions assist in tying buildings together into cohesive groups, while the variety of facade decoration adds visual interest and creates diversity within an overall cohesiveness. This DCP ensures that new development responds to this building pattern by stepping down rather than up towards the rear of the property, and that the massing of buildings is in keeping with the simplicity of the prevailing building forms and roof shapes found in Marrickville's business centres. Objectives 01 To preserve the prevailing pattern of buildings, built to the front boundary and massed to their full height at the street frontage and stepping down at the rear. 02 To reinforce the local topography of Marrickville's business centres as ridge roads, visible at their highest points to adjacent uses and neighbourhoods. Controls C1 Buildings are massed towards the street frontage, stepping down to the rear. C2 Building mass maintains the prevailing vertical character found in Marrickville's business centres. C3 Disruption of street wall massing is not permitted. 21 Also of relevance, Pt A3 contains the following controls for building height. A3. Building Height Most buildings along Marrickville's traditional strip shopping centres are built to their maximum height at the street boundary (generally 2-3 storeys massed at the front street alignment) and are characterised by ornate parapet features, providing a rich and varied silhouette. This creates a pleasant scale within the shopping street for pedestrians and has ensured that there is good solar access to footpaths and public areas. The purpose of these controls is to retain the prevailing 'massed to the street' wall effect in Marrickville's business centres and to minimise any negative environmental impacts on public amenity. Objectives 01 To retain a consistent scale of buildings when viewed from the main shopping street. 02 To retain the visual prominence of items of environmental heritage, contributory building facades, and the prevailing street wall height. 03 To reinforce the built form and topography, characterised by the taller buildings along the retail strip following the ridge and stepping down to the residential development on the adjacent slopes. 04 To minimise the potential for overlooking and overshadowing of business centre development on adjoining residential development. 05 To encourage buildings of a height that do not have an overbearing visual presence on adjacent development. 06 To ensure that new development is well integrated i nto the business centre. Controls Height C1 Height of building at the street boundary is determined by the prevailing wall height of adjacent and any neighbouring contributory buildings. C2 Vertical (upper floor) additions to buildings may be permitted: * If they are not visible from the "shopping street" and the streets running of them … * Where they help improve buildings contribution to the setting … * When buildings display a uniform height at the street alignment, new development shall maintain a complimentary height relationship with adjoining development… C3 The height of corner building may be higher than the height limit determined by neighbouring buildings, to a maximum distance 5 m from both sides of the street corner, in order to reinforce the street corner. C4 At the street frontage, only minor features such as parapets can project above the building height limit, and only to a maximum of 50% of the parapet width. C5 Buildings are to step down at the rear, to a maximum external wall height of 7.5 m, to be compatible with the scale of the adjacent residential areas and in keeping with the built form pattern of retail streets. C6 Building height on rear lanes etc. is limited to a maximum of 7.5 m to the top of the wall. 22 From their assessment of the amended proposal, the planning experts agreed that the 3 storey element fronting King Street reasonably satisfied these controls and presented no issue. Also, that they had no planning objections to the particular design of the building and its architectural presence, instead they deferred this to the heritage experts, for assessment in the context of the heritage area considerations. 23 However the planning experts disagree on the appropriateness and degree of visibility of the proposed, recessed 5th floor unit. In this regard, Mr Harding says that due consideration should be given to the unusual circumstances of the "dogleg" shape of the lot, which allows flexibility as to where the building mass can be distributed. He considers that the proposed transition, where the building setback has been increased to 10 m from King Street, results in acceptable visibility impacts from the public domain and satisfies the aforementioned objectives. 24 Mr Harding also says that the building has been setback further from the southern boundary so that there are no additional amenity impacts on the neighbouring property, particularly overshadowing. As the neighbouring properties obtain acceptable levels of solar access, then the distribution of massing has no material amenity impacts and is acceptable. 25 However Mr Erken disagrees with this assertion that the distribution of massing has no material amenity impacts on the adjoining properties. He says that the "stepped envelope" results in increased height and massing in an area where existing development and council's policy require a reduction in mass. Consequently this results in increased bulk and overshadowing impacts for adjoining properties, which he considers unsatisfactory. 26 Accordingly, Mr Erken says that the top floor (5th level) should be removed and the 4th floor should be a recessive element in the streetscape because the adjoining properties fronting King Street are likely to be developed in isolation and without the provision of vehicular access and car parking. Development of these properties is likely to be modest in height and mass, given the constraints imposed by the heritage significance of the King Street facade and adjoining residential development fronting Bailey Street. Therefore the proposal is likely to compromise the development and amenity opportunities for these properties. 27 In my assessment, I accept that the resolution of these disparate opinions is complicated by the "dog-leg" shape of the consolidated allotment, which gives effective frontages to King Street, Enmore Road and Bailey Street and some degree of uncertainty about the definition of the rear of the site. Also, the absence of a rear lane to gauge the "stepping down affect" is a further complicating factor. 28 Consequently the determination of appropriate bulk and scale of buildings in this zone depends on subjective evaluation, because there are no height controls to define the allowable building envelope. Instead, the building height at the front street boundary is to be compatible with adjacent building heights and the buildings are to step down to the "effective" rear, to a maximum external wall height of 7.5 m and to be compatible with the scale and character of adjacent residential areas. 29 Associated with this is, the FSR is the main numerical control to achieve compatibility with neighbouring buildings. This compatibility is to be achieved by the relevant provisions of the development controls, including the prescription in both DCP, 28 and 34 that "buildings are to be massed towards the street frontage, stepping down to the rear". 30 The building height controls in DCP 34, propose the retention of the prevailing "massed to the street" wall effect in Marrickvilles business centres and also to minimise any negative involvement of impacts on public amenity. The objectives include: 04 To minimise the potential for overlooking and overshadowing of business centre development on adjoining residential development. 31 In order to assess the height and massing effect, the planners referred to the axis diagram (Exhibit C) Attachments A and B, which show the building transitions from the front street alignments through to neighbouring buildings and streets as follows: + A-B represents the axis from King Street, through the main building to the back of the properties fronting Enmore Road, + C-D represents the axis from the rear of the King Street building through to the existing buildings in Bailey Street. + E-F represents the axis from the rear of the King Street properties through to Enmore Road. 32 It also indicates the building profiles of adjoining buildings, together with the building envelope of another currently approved DA (green) for the site. 33 As a starting point then, I accept that the FSR is an indication of the allowable floor space to be distributed within the building envelope. In this case the FSR is 2.067:1, when calculated in accordance with the planning controls and it marginally exceeds the FSR development standard of 2.0:1. A SEPP 1 objection was lodged to address this non-compliance, and I subsequently deal with it, in conjunction with the merits of the proposal. Nevertheless, this indicates to me that the proposed building bulk is at the maximum level permitted for the site and the distribution of this floor space is a significant factor in assessing the proposed massing of the building. As such, it imposes constraints on the distribution and stepping of the building mass, in accordance with the qualitative controls. 34 In this regard, I have considered Mr Harding's opinion that the "wedge" location of the site is one of the circumstances, where a stepped envelope to permit some massing of floor space away from the street front could be allowed. On this basis, he says; that the stepped solution achieves two significant outcomes, the first being to ensure that the building has minimum visibility when viewed from the public domain in King Street. The second is the sensible distribution of building mass, that is, where the mass has least impact. The distribution must be considered in the context of the whole site extending from Bailey Street to King Street. 35 From my assessment of the evidence, the distribution of building mass is initially restricted by the adjacent building heights in King Street. In this regard, I accept the planners' agreement that the proposed 3-storey presentation is acceptable. The proposal then continues this 3 storey height along the axis A-B (i.e. along the southern elevation), to the rear boundary with the service station and Buddist temple. This 3-storey presentation provides no setback or stepping down to part of the service station site. 36 Part of the additional floor space is then contained on the 4th storey, which has a 4 m setback to King Street, but extends for a length of some 39.5 m (i.e. approximately 74% of the southern elevation). 37 The remaining floor space is contained within the 5th storey that has a 10 m setback to King Street, which then extends some 27 m along the A-B axis (i.e approximately 50% of the southern elevation). 38 By reference to the axis (building envelope) diagram, it appears to me that the distribution of this building mass along the A-B axis is of a horizontal character and not sufficiently responsive to the requirement for some "stepping down" at the rear property. Instead this proposal retains the 3-storey height at the rear boundary with the service station, where the units are to be provided with fire rated openings along the boundary. 39 Insofar as the planners have referred to the amenity impacts on neighbouring properties, in terms of existing and future developments, it seems to me that this is of a somewhat speculative nature. Mr Harding says that: The service station site and the Buddhist Temple site are located at the rear of this development in contrast to other sites in King Street which have residentially zoned land at the rear. This changes the need for a transition as these buildings will have much greater heights than the residential areas the controls seek to protect. 40 He indicates this possible redevelopment on the axis diagram E-F. This shows a 3-storey building on the service station site providing a boundary setback for a courtyard between the buildings. However if the subject building is approved, it provides no setback for a contribution to this possible courtyard area. 41 Apart from this, Mr Erken does not consider the transition for stepping down along A-B and C-D is satisfactory because the new building presents an undesirable relationship with the Bailey Street terraces, which are of a lower, 2-storey character, with open rear yard areas. 42 Notwithstanding this, I note Mr Harding's assessment that the impacts on the Bailey Street properties is acceptable because any perceived visual impacts are mitigated by the tree retention. Also, he says that the existing controls allow the King Street properties to be developed with a 7.5 m height at the rear boundary, which can be increased by a 45 degree building height plane, which effectively allows 3-storeys within 3 m of the rear boundary of the Bailey Street properties. 43 Whilst this may be the case, my interpretation of the controls is that they consistently encourage the massing of the building to be located towards King Street and stepped down to the rear. On the main axis, the proposal starts at 3 storeys in King Street and maintains this for the practical entirety of axis A-B, it does not in my opinion achieve effective stepping down and indicates that the proposal represents an overdevelopment of this constrained site. 44 The consideration of the associated heritage and streetscape issue concerning the King Street facade resulted in amendments to the proposal after conferencing by the heritage experts. Notwithstanding this, Mr Staas said that the planning controls were at odds with each other because the guidelines for infill development allow for contemporary design while indicating that the reproduction of original details is an appropriate and in some cases desirable outcome. He does not consider there is any reason for a pastiche infill on this site because it reduces the significance of the original buildings and detracts from the heritage character. 45 However, taking into account the streetscape presentation of the neighbouring ground floor commercial premises and the various buildings on the 2nd and 3rd levels, I accept the heritage planner's opinions that the proposed facade presentation is acceptable, although I note Ms Heddich's opinion that the proposed verandah treatment and 4th and 5th levels present undesirable intrusions into streetscape. In the event of the proposal meriting consent, conditions could be imposed to cover this detailing. 46 The other substantive issues concern access and traffic arrangements, primarily focused on the adequacy of the basement carpark, including its role for servicing the commercial premises. The traffic experts agree that the proposed 24 car spaces can be reasonably allocated for the various uses and whilst this number of spaces represents a "shortfall" of 9 spaces under DCP 19 provisions, nevertheless it is satisfactory in the circumstances of this application. 47 As I have noted, one of the outstanding concerns is the servicing arrangements for the commercial premises because of the limited on-street parking in King Street and the inadequacy of the Enmore Road right-of-way for SRV trucks or larger vehicles having regard to its width and height limitations. Concerns were all also expressed about the suitability of the loading bay in the basement car park due to the height and grade limitations and sufficiency of manoeuvring area for service vehicles to leave the site in a forward direction. 48 Mr Bertacco says that given the level of retail and commercial floor space proposed, a loading dock 7.5 m long x 3 m wide should be provided on the site in accordance with cl B2.3 of DCP No. 19 to allow for access by a 6.4 m small rigid vehicle. Such access to the loading bay should be provided via Bailey Street. He considers it unsatisfactory that deliveries to the site should be undertaken across the footpath in King Street given the relatively heavy road use (approximately 23,000 vpd), high-volume of pedestrian traffic and limited on street parking spaces. 49 Against this, Mr Varga considers that the vast majority of servicing/delivery needs of the commercial/retail component of the development will be undertaken by light commercial vehicles such as "white vans", utilities and the like which can be accommodated in conventional parking spaces such as in the proposed basement, where the 2.5 m x 6.6 m loading bay is provided. 50 Notwithstanding this, Mr Varga acknowledges that some deliveries to the proposed shop may occasionally be made by small trucks and these infrequent deliveries could be accommodated by parking in King Street. In support of this proposition, he undertook a daily parking accumulation survey in King Street and found that: + parking generally remained available throughout the duration of the survey, apart from the 1 pm time slot, + at least one parking space for a smaller medium-size rigid truck in remained available in the loading zone (ie. Zone A) for most of the day, apart from the 1pm time slot, + nevertheless, the majority of light commercial vehicles or small trucks chose to park in the 1-hour parking area (ie. Zone B), immediately in front of and to the north of the site. 51 In my assessment of this issue, I consider the proposal is a substantial development in this location context and satisfactory arrangements are desirable for off-street servicing of the commercial and retail areas. I note the applicant's concession that the car park could be amended to accommodate this. 52 Nevertheless, I consider the current application is deficient in its compliance with some of the aims and objections of DCP 19, particularly "to ensure the provision of adequate delivery and service areas and the orderly and effective operation of delivery and service area within developments" and "to ensure that car parking provision meets business and community demand". 53 A SEPP 1 objection was lodged in respect of the non-compliance with the floor space ratio (FSR) development standard in cl 33(1) of LEP 2001, which applies an FSR of 2:1 to buildings in the General Business 3A zone. The amended proposal has an FSR of 2.07:1, which represents an exceedence in the order of 98.3 sq m. 54 The SEPP 1 objection notes that the floor space exceedence is located within the basement, in the form of waste storage rooms and residential wire storage cages, which council includes in its calculations as FSR. It suggests that exclusion of these areas within the basement is considered acceptable for a number of reasons. 55 In the absence of any stated objectives, the objection relies on other planning controls to derive the following underlying objectives: 01 to ensure that the density of development within Marrickvilles business centres is consistent with the desired role and function of the particular centre and the capacity of the local road network to handle traffic likely to be generated by new development; and 02 to ensure that the density of development is appropriate to the contextual constraints of the site, including townscape qualities streetscape considerations, building height and setback, building form, building elements and amenity of neighbouring areas. 56 Accordingly, the objection states that compliance with the development standard is a reasonable and unnecessary in the circumstances of the case because: o the portion of the proposed development located above ground level complies with the maximum permissible 2:1 Development Control; o the GFA contained below ground level (which results in the proposal exceeding the maximum permissible FAR control) is not habitable floor area and does not add to the bulk or scale of the proposal; o the provision of storage enclosures contained within the basement is required in order that the proposal comply with the storage requirements contained in SEPP 65. This document requires that storage be provided for all residential apartments, and that not more than 50% of the required storage can be provided within the apartment. o the provision of garbage storage rooms is required in order to comply with Council's waste management controls. It is considered that locating the enclosures within the basement level achieves a higher level of amenity at ground level, by separating the waste areas from the busy commercial and outdoor courtyard areas at Ground Floor; o the proposed development has been designed to present an appropriate bulk and scale, when considered in the context. The uppermost levels will not be readily discernible to passers-by on King Street, due to the generous setbacks adopted from the King Street frontage; o the bulk and scale of the development fronting onto Bailey Street has been reduced and is commensurate with that of adjoining and neighbouring buildings in this street. o the proposal will contribute positively to the desired future character of the locality; o will not detrimentally impact on the amenity of the existing residential development of the area; and o provides high quality residential, retail and commercial accommodation. 57 Having considered this objection, I accept that the degree of exceedence of the FSR development standard is relatively small within the context of the overall development. However, from my consideration of the merits of the application, I consider that the aforementioned underlying objective 02 is to ensure that the density of development is appropriate to the contextual constraints of the site, together with expressed controls for the mass of the buildings to be located towards the street fronting and step down towards the rear. But in this case, the maximisation of the FSR results in inadequate "stepping down", with part of the rear boundary (adjacent to the service station) having zero setback and a 3-storey height, which likely compromises future development of the adjoining properties. 58 Under these circumstances, I consider that the deletion of the excessive floor space to achieve compliance with the development standard, would likely result in better achievement of the underlying objectives for new development to achieve reasonable compatibility with existing and future development of neighbouring properties. In the circumstances of this case then, I do not consider that compliance with the development standard is unreasonable or unnecessary. 59 A number of objections and public interest considerations were submitted in connection with this proposal. These include the Buddhist Centres concern that the development relies on "unlawful" use of the right-of-way by the creation of a general public thoroughfare, which will interfere with the amenity of the centre. In the event of any approval being granted, the centre requests conditions of consent be imposed to protect their amenity. They also raised concerns about the size and bulk of the development, which use considered an inappropriate overdevelopment of the site and also about the appropriateness of including pedestrian access from Bailey Street to the site. 60 Other objections were lodged by owners of neighbouring properties, who expressed concerns about: + the proposed 5-storey building is too high for its location, by comparison to the adjacent buildings, + possible overlooking from windows of the units on the neighbouring properties, + the proposal will overlook and cast shadows onto 10 Bailey Street, causing loss of privacy and natural light and solar access, + the proposed development will increase traffic flows in the one-way rear lane causing negative impacts on the surrounding dwellings in terms of noise levels and available parking, + the proposed efficiency in on-site car parking spaces, relative to the DCP No 19 requirements, putting added pressure on the very limited parking available to residents in Bailey Street and surrounding streets. Conclusions 61 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent, primarily because the maximisation of floor space results in excessive massing along the site, which does not reasonably satisfy the controls for such massing to be located towards the front street (King Street) and step down towards the rear of the property, taking into account the Heritage Conservation Area consideration. 62 In this Marrickville shopping strip, it is apparent from the view that the majority of buildings have a 2-3 presentation, which is massed towards the front street alignment. Whilst the proposal reasonably satisfies the facade height requirement, it adds the further 4th and 5th levels, which I consider will have a degree of visibility from various viewing points in King Street. In this regard, both Mr Erken and Ms Heddich considered the proposal was of excessive height, and I am inclined to accept these opinions, particularly that the 5th level should be removed, so that more appropriate streetscape impacts are achieved. 63 Associated with this height control is the requirement that the building is to step down towards the rear of the property. Insofar as there was some debate about the location of the rear of the property, it seems to me that a practical interpretation of this, is generally the common boundary with the service station and Buddhist Temple, near axis point A-B-C. At this boundary, Unit A1.04 has zero setback and in conjunction with Unit A1.05, which has a setback of approximately 2 m, presents a 3-storey elevation. In my assessment, this does not represent sufficient "stepping down" from the 3-storey King Street presentation, as demonstrated by other nearby buildings and it exceeds the stated maximum rear building height of 7.5 m. I consider this a negative aspect of the proposal. 64 In addition to this, the controls also require the massing to be located towards the main street frontage. However from my assessment of the proposal, the desired floor space is distributed over 74% along the 4th level and also 50% of the additional 5th level. In my opinion, this represents a significant horizontal placement of floor space, rather than a vertical placement of additional floor space mass near the street frontage, as demonstrated by the existing built form in this neighbourhood. 65 It then seems to me that this inadequate compliance with the height and massing controls then results in poor resolution of the internal spaces of the north western part of the courtyard and its connection to the courtyard behind Nos. 4 and 6 Bailey Street. This courtyard is of fragmented shape due to the location of the basement stairs and landscaping, so that the connection relies on a "tunnel-like" 1.5 m walkway over which are Units A1.04 and A1.05. The 3-storey wall height in this courtyard area are likely to cause a compounding effect which consequently has poor safety and amenity, in my opinion. 66 Furthermore, I consider the inability to provide a safe and attractive pedestrian connection through to Bailey Street is a negative aspect of the proposal. This is notwithstanding the possibility that this can be provided subject to resolution of the "adverse possession claim", but there is no certainty of this in the current development application and the objectors identified this as a significant concern in the amenity of this new mixed development proposal. 67 In the ultimate, it also seems to me the aims and objectives of the DCP 28 are relevant wherein it is to provide landowners, developers with a comprehensive urban design approach to carry out development within the Marrickville business centres. This includes ensuring that the impact of proposals on adjoining properties and the character of the business centre is a prime and initial consideration in the preparation and assessment of development proposals. 68 However in this case the proposed height, bulk and massing of the proposal involved consideration of the future development of neighbouring properties. As I have noted previously, it seems Mr Harding's evidence in this regard is of a more speculative nature regarding the future development of neighbouring properties, particularly his depiction of the redevelopment of the service station site and its provision of boundary setbacks to provide some form of "rear open courtyard". 69 Consequently, I consider it more appropriate to follow the more flexible approach of Mr Erken, which requires the building massing to be better concentrated towards King Street and a more pronounced stepping down effect to the achieved to provide an effective "rear corridor", rather than the proposed 3 storey building presentation with zero setback adjacent to the service station site. This approach is more compliant with the comprehensive urban design approach, in my assessment. 70 I have previously dealt with the SEPP 1 objection and note that Pt A1 of DCP 28 states that the FSR control, is to facilitate an acceptable bulk and scale of development that is in relationship with the shopping street and adjoining development. It also states that whilst the Marrickville Local Environmental Plan 2001 establishes a maximum FSR, this may only be achieved by satisfying the other relevant criteria contained in this DCP. For the reasons mentioned previously, I do not consider this SEPP 1 objection should be allowed. 71 In terms of the heritage considerations, I accept that the amended King Street facade is generally satisfactory, subject to revised detailing of the veranda areas. However, in accordance with my other assessments, I am inclined to accept Ms Heddich's opinions that the 4th and 5th storey presentations and do not compliment the streetscape, notwithstanding their limited visibility. 72 The other significant issue concerns the access and parking even though the traffic experts agreed to the on-site car parking deficiency relative to the current DCP controls, I consider this a negative aspect of the proposal. Furthermore, I consider it desirable for a new mixed development of the nature proposed, to provide off-street servicing arrangements, rather than likely cause further congestion and pedestrian inconvenience with roadside deliveries. Insofar as the applicant acknowledged these amendments could be made, the proposal does not detail this sufficiently to ensure its suitability. I consider this a further negative aspect of the proposal. 73 For these reasons, I consider the cumulative effect of the negative aspects of the proposal results in its failure, particularly the proposals inadequate placement of the building mass towards the street frontage so as to achieve reasonable stepping down of the building to the rear. Court orders 1. The appeal is dismissed. 2. The SEPP 1 objection to the FSR development standard in cl 33(1) of the Marrickville Local Environmental Plan 2001 is disallowed. 3. Development consent to DA 200500513 for the construction of a mixed use commercial/residential/retail development at 359-361 King Street, Newtown, is refused. 4. The exhibits may be returned except for 15, 16, 17, C, D, G and K. ________________ R Hussey Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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