Land and Environment Court of New South Wales CITATION : Luna Moon Pty Ltd v Leichhardt Council [2005] NSWLEC 566 APPLICANT Luna Moon Pty Ltd PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 11464 of 2005 CORAM: Nott C Development Application :- proposed partial demolition and conversion of factory buildings for use as dwellings - decrease of overall floorspace - noncompliance with the LEP and DCP - objection under SEPP 1 - circumstances in which redevelopment may take place are not confined to the adaptive reuse provisions of the DCP - relevant to consider continued use of existing buildings if DA refused KEY ISSUES: Environmental Planning and Assessment Act 1979 s 97 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000 DATES OF HEARING: 9 & 10 August 2005 and 15 September (half days) and 16 September 2005 DATE OF JUDGMENT: 10/11/2005 APPLICANT Mr A Pickles, barrister SOLICITOR LEGAL REPRESENTATIVES: Paul Marsh RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 11 October 2005 11464 of 2004: Luna Moon Pty Ltd v Leichhardt Council [2005] NSWLEC 566 JUDGMENT 1. Commissioner Nott: This is an appeal against the council's refusal of a development application relating to the partial demolition and conversion of former factory buildings on lot 1 DP 612415 at 106 Beattie Street, Balmain to provide a total of eight dwellings. The site has an area of 1,064.6 sq m. The proposed development is described in more below (par 4 ff). 2. At the hearing, evidence for the applicant was given by town planner Ms D Laidlaw, by architect Ms D Williams of the firm Jackson Teece, and by structural engineer Mr S Wilshier. For the Council, evidence was given by Ms G Chakar of 17 Mullins Street and by consultant town planner Mr A Smith. I have also taken into account the other documents tendered by the parties, including council's Further Amended Statement of Issues dated 21 July 2005 (which has to be read in the light of the subsequent amended plans). 3. For the reasons that I will elaborate, I have concluded that it would be appropriate to grant development consent for the proposal in the amended plans, subject to the conditions in annexure A to the Court's order. 4. As amended, the proposed development can be seen on the plans listed in general condition 1 of annexure A of the Court's consent. The development comprises four main elements. First, on the eastern side of the site the building known as the Softwood Milling building will be converted to seven dwellings constructed over three levels. Originally, only six dwellings were proposed in the Softwood Milling. The seventh dwelling in this building results from proposed unit 1 being divided into two smaller units, unit 1a (shown on the ground-floor plan, Beattie Street) and unit 1b (level 1). Units 2, 3 and 4 will extend over two floors, from the ground floor of Beattie Street to level 1. Units 5 and 6 in this building will also extend over two levels (levels 2 and 3). In fact, the upper floor of each of units 5 and 6 will extend partly above the existing roof and will contain a room designated as a "conservatory" and a small roof terrace. 5. Secondly, on the western side of the site, the large factory building attached to the rear of an existing ground-floor shop at the Beattie Street frontage will be demolished, except for a portion of the western brick wall that will be kept as a boundary fence along part of the side boundary of the adjoining properties. The shop will be retained and a single two-storey dwelling, unit 7, added : the ground floor of this dwelling will be attached to the rear of the shop, and the upper level of the dwelling will extend over both the existing shop and the ground floor of the dwelling. 6. Thirdly, each of these eight dwellings will have a private terrace, as well as having access to a common landscape area shown on the ground floor plan. The common area will be located mainly on the western side of the site behind the private terrace of unit 7, and this common area will extend in part to the eastern side boundary behind unit 4. In order to provide some of this common open space, another unit that had been proposed in the original plans behind unit 7 has been deleted. 7. Fourthly, an excavated carpark for seven carparking spaces will be provided towards the rear of the site with access from a rear lane. As well, three visitor-carparking spaces at the level of the lane will be provided on the site immediately adjoining the lane. 8. I turn now to consider the merits of the proposal and to deal with issues raised by the council. 9. The subject land is in the residential zone and in a conservation area under he Leichhardt Local Environmental Plan 2000 ("LEP"). Under Leichhardt Development Control Plan 2000 ("DCP"), the site is in the Valley Distinctive Neighbourhood Area. 10. In the first issue, the council raised questions as to the adequacy of the information submitted with the development application. However, prior to and during the hearing, aspects of the proposed development that might have been unclear or inadequate were quite competently rectified. The 13 sheets of plans listed in general condition 1 of annexure A hereto, which are mostly large B1 sheets at a scale of 1:100, show in detail the existing buildings, and indicate the portions of the buildings to be demolished (particularly plans DA124E and DA125E) and the new work to be carried out. Ms Laidlaw in her report dated July 2005 (ex B) analysed the likely degree of sunlight received by the units and gave supplementary oral evidence. In my opinion, the information submitted is quite adequate for the granting of a development consent subject to conditions. 11. Issue 2 related to the non-compliance of the proposed development with the planning controls of density and floor space ratio ("FSR"). If the subject site were a vacant parcel of land, a new building similar to the Softwood Milling building (as proposed to be altered) would probably not be approved having regard not only to the FSR control but also to other controls in the LEP and DCP. 12. However, an important circumstance of the case when considering the non-compliance with the FSR and the non-compliances with other controls, is that the subject site is not vacant, and that the existing buildings are being used and could continue to be used for their approved purposes or for such other purposes that the council might grant consent for. The FSR of the existing buildings has to be taken into account. Likewise, when considering the other issues raised by the council, the form, scale, appearance and other aspects of the existing buildings need to be taken into account. 13. The existing buildings on the subject site have an FSR of 1.19:1, which is greater than the FSR of the proposed redeveloped site. The proposed gross floor area is 1004 sq m on a site of 1064.6 sq m, giving a proposed FSR of 0.943:1 (per plan DA107E). In accordance with clause 19(1) of the LEP, the maximum FSR for a building in Balmain is 0.7:1, subject to certain exceptions elsewhere in the LEP. 14. The applicant lodged an objection under State Environmental Planning Policy No.1—Development Standards ("SEPP 1") seeking a dispensation from the FSR development standard in clause 19(1) (ex B pp 13-15). Ms Laidlaw gave further evidence in support of the SEPP 1 objection (ex B at sec 1.11), while Mr A Smith concluded that the objection was not well founded (ex 5 pp 25-31). In relation to this and other issues in the proceedings, both town planners set out in a joint statement (ex 10) their reasons for disagreeing with each other. 15. It seems to me that the underlying objective of the FSR is to control the bulk and scale of development. And the objectives in clause 17 of the LEP should not be overlooked. As part of the proposal, the demolition of the western factory building behind the shop will provide a substantial reduction in the amount of floor space that would otherwise remain on the site. The proposed amount of floor space outside the envelope for the Softwood Milling building for the two conservatory rooms (totalling about 40 sq m), together with the small amount of additional floor space over the existing shop, is reasonable having regard to the overall reduction of the total proposed floor space compared with the existing floor space. 16. The proposed conservatory roofs will be set back from the gutter of the main lower roof of the converted building and will not be readily seen. It is appropriate to otherwise retain the existing bulk of the Softwood Milling building, as it immediately abuts another large building to the east. There is a step down from the Softwood Milling building to the lower, smaller proposed building on the western side of the subject site, which provides a transition in height to the building on the adjoining site. 17. Behind the existing shop, the removal of the western factory building will provide open space for all the proposed units on the subject site. The brick sidewall of this factory building will be kept as a side-boundary wall and will be altered so that there will be a timber slatted screen for the uppermost 1 m instead of a solid wall. 18. I am of the opinion that it is unnecessary to require compliance with the FSR development standard because of the particular circumstances of this case, and that the objection is well founded. 19. Issue 4, 5 and 6 give particulars why the council alleges that the proposal is unacceptable in relation to landscaping and private open space . The applicant has lodged an objection under SEPP 1 in respect of the non-compliance with the landscape development standards in clause 19(3)(a) and (b) of the LEP. In considering this objection, it is relevant in my opinion to again compare the proposed development with the existing situation. Now, there is no landscaping at all on the subject site because it is substantially covered by buildings from one side boundary to the other and for most of the length of the site. The parts of the site where there are no buildings are covered by pavement. As stated on plan DA108E, the proposal has a total landscaped area (including paving in private and common areas but excluding carparking and driveway ramp) of 562 sq m. There will be roof gardens of 137.9 sq m and deep planting of 103.1 sq m. 20. As seen on plans DA101G and DA109E, the common walkway through the proposed development and the common open space on the site and the ground-floor private areas of the units adjoining the walkway will have, in appearance, all the pleasantness of a landscaped area as more generally understood, even though some areas do not meet the defined meaning of "landscaped area" (p 75 of the LEP) and even though the development will not meet the quantitative requirements of the development standards. Having regard to the proposed landscaped spaces, generally considered suitable in themselves, and taking account of the present situation, I am of the view that the objection to the landscaping development standards prepared by Ms Laidlaw is well founded and that it is unreasonable to require strict compliance. (As regards the private open space of unit 1a, see par 29 below.) 21. In the context of the existing and surrounding development on the site and in the locality, the proposal does not violate principle 4 (density) of SEPP 65. 22. In respect of the above objections under SEPP 1, it is appropriate for the Court to exercise in favour of the applicant the director's concurring power under clause 8 of SEPP 1. No matters of State or regional significance will be adversely affected. There is a planning benefit in maintaining the planning controls for new development, subject of course to considering the particular built context of the development. As regards proposed development itself, it would be unjust and unreasonable and not in the public interest to strictly enforce the planning controls without regard to the extent to which the existing buildings on the site (which could otherwise continue to be used) are in breach of the planning controls. 23. Building conversion and adaptation (issues 7 and 8) . It is not necessary for the applicant to rely on clause 19(5) of the LEP in order to obtain a development consent—clause 19(5) is not the exclusive pathway to an approval. If a dispensation under SEPP 1 is granted in respect of the non-compliances with the development standards, the requirements of clause 19(5) do not need to be met. Nevertheless, it is appropriate that I comment briefly on some of council's particulars. Will the Softwood Milling building be substantially retained? The answer to this question is complex and it might be helpful to devise some form of "retention index" or criteria. For example, certain retained elements of the building (such as structural steel columns and beans, and concrete floors or slabs) should probably be given much greater values or higher index scores than old metal cladding that might need to be replaced, even though that cladding is extensive in area. But I do not propose to elaborate further on this. I think that the Softwood Milling building is substantially retained, because important structural members are retained and because the overall form of the adapted building is much the same as the existing building. I have already referred to the two proposed conservatory rooms whose roofs are set back from the leading edge of the main roof. The conservatory roofs do not project excessively above the line of the main roof. Also, the actual floor surface of each conservatory room and more than half of the volumetric room space appears to be contained below the line of the existing main roof. 24. Diverse housing (issues 9 and 10) . The site is in the residential zone under the LEP. In accordance with two development standards in clause 19(6), the amended plans now provide for the minimum number of one-bedroom dwellings, and the proposal does not exceed the prescribed maximum number of dwellings containing three or more bedrooms. 25. Solar access and amenity of the units. The proposed units are generally facing west, because the existing Softwood Milling building has its eastern sidewall immediately abutting the large warehouse wall of the adjoining property. Some parts of any development on the subject site (assuming it were vacant) would be adversely affected by the overshadowing from this large warehouse. As submitted by the applicant and it would appear that 80 percent of the units receive three hours sunlight, and that the development is satisfactory having regard to SEPP 65. 26. As regards units 2, 3 and 4, they each have a void in the upper level floor enabling extra light to penetrate to the ground floor. The floor-to-ceiling height in the location of the void is 6 m. Unit 2 has reasonable amenity, and units 3 and 4 have better amenity by reason of being located adjoining the common landscaped open space. 27. Proposed unit 7, located behind and above the existing shop, has a ground-floor private terrace on the southern side, which will be overshadowed. However, at the upper level, unit 7 has a loggia off the living room, which would receive ample sunlight from the north. Unit 1b also has a north-facing loggia. 28. The amenity of units 5 and 6 would be rather good with the extent of glazing and the benefit of roof terraces. 29 Unit 1a has the poorest amenity. Little sunlight would be received directly. However, section 4 of plan DA105G shows that in midwinter, sunlight would pass over the privacy screen at the street alignment and penetrate the north-facing windows of the kitchen and dining rooms, even though the floor levels of these rooms are below the footpath level. As well, some minimal sunlight might be received through the cutout void section of unit 1b above it. This void would at other times provide daylight. Unit 1a also has a terrace at the front of approximately 16 sq m. This terrace is usable but it has poor amenity because it is at an excavated level adjoining the street boundary and would not receive direct sunlight in midwinter although it would receive daylight. Adequate privacy will be provided for this terrace because of the proposed timber slatted privacy screen to be erected on top of a dwarf rendered masonry retaining wall at the street alignment. The top of the wall separating the private area of the unit from the walkway within the site is such that persons using the walkway should not be able to look into the unit, although there may occasionally be some impairment of acoustic privacy. Some landscaping will be provided adjacent to the walkway. 30. Even if the subject site were vacant, there would be problems in developing it. The proposal involves an adaptive reuse of an existing building and, while unit 1a has the least amenity, the development as a whole has reasonable or good amenity, and I do not think that there should be a refusal of the application on the basis of amenity issues or non-compliance in the DCP. 31. Heritage conservation objectives (issue 13). The issues refer to the general objectives in clause 13(1) and (2) and the Heritage conservation objectives in clause 15(a) and (c) of the LEP. In granting consent, the matters in clause 16 need to be considered. 32. The locality contains a wide variety of buildings in terms of architectural style and form. Beattie Street provides examples of heritage-listed buildings, two-storey terraces with shopfronts, a warehouse building at 96-98 Beattie Street adjoining the subject site, and contemporary townhouse development. The hotel on the corner of Beattie Street and Mullens Street and several buildings opposite the hotel are heritage items. To the south of the site, Roseberry Street is characterised by single-storey semi­detached cottages. 33. The adjoining warehouse building to the east at 96-98 Beattie Street is massive, with a high masonry walls built from one side boundary to the other. To the west of the subject site, 108 Beattie Street contains singles-storey dwelling and No. 108A is a battle-axe allotment containing eight townhouses. 34. The large warehouse adjoining the subject site and the Softwood Milling building itself are part of the historical development of the locality. The proposed development will largely retain the form of the existing building on the site. All witnesses agreed that the appearance of the reddish front facade of the subject building was quite unattractive. The proposed metal sheeting to this façade, as seen on the board of proposed colours and materials (exhibit 9) and as described by the architect Ms Williams, will clearly be an improvement. It seems to me that the heritage and conservation objectives must be considered in the context of the surrounding development including the development existing on the subject land. I consider that the proposal will be consistent with the objectives and is otherwise acceptable. 35. The materials proposed (ex 9) appear to be appropriate for the conservation area, including the milled timber slats that will be used for privacy screens. The proposed development will be aptly named The Mill , which will be a reminder of a former use of the site. 36. Building envelope, height and setback (issue 14). Reference could be made to my general comments at pars 12 and 15 above. 37. Public interest and issues raised by objectors (issue 15). Some residents referred to the problem of congestion in the rear lane because of trucks coming to the warehouse adjoining the subject site. However, the council did not submit that the proposal should be refused because of the small additional volume of traffic (which is unlikely to involve trucks on a regular basis) coming to the site. 38. The number of carparking spaces is in accordance with Leichhardt Development Control Plan 2000 ("DCP"). The amended plans made improvements to the layout of the carpark and to the width of the open-air visitor carparking spaces. 39. Although it was not raised by the council, I expressed some concern for the protection of the adjoining townhouses to the west, and during an adjournment an engineering report was obtained. Additional conditions of consent have been framed relating to the protection of adjoining properties and these conditions should be carefully complied with by the applicant and checked by the principal certifying authority. 40. Having considered the public interest and the matter generally, I agree with Ms Laidlaw's conclusion that development consent should be granted subject to conditions. If the Court was minded to grant consent, the parties agreed that it should be deferred commencement consent. The proposed conditions are acceptable the applicant. 41 . Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. A deferred commencement consent is granted for demolition, alterations and additions to buildings at 106 Beattie Street, Balmain, for the purpose of eight dwellings and a shop, in accordance with the conditions in annexure A hereto. 3. The exhibits, other than exhibits A and M, may be returned. (Exhibit 9, referred to in condition 34, should be provided to the council.) __________ A J Nott, Commissioner of the Court 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.