Land and Environment Court of New South Wales CITATION : Bolzan, Dimitri & Flyover P/L v Leichhardt MC [2005] NSWLEC 323 APPLICANT J Bolzan, V Dimitri and Flyover Pty Limited PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11346 of 2004 CORAM: Murrell C Development Application :- Construction of a mixed commercial residential development - heritage - height - bulk and scale - streetscape - urban design - site and context. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Environmental Plan 2000 Leichhardt Development Control Plan 2000 CASES CITED: Dem Gillespies Pty Ltd v Warringah Council [2002] 124 LGERA 147 DATES OF HEARING: 02/05/2005 and 30/05/2005 EX TEMPORE JUDGMENT DATE : 05/30/2005 APPLICANT Mr G. Newport, barrister instructed by Mr V. Dimitri of Bolzan & Dimitri LEGAL REPRESENTATIVES: RESPONDENT Mr G. Green, solicitor instructed by Ms J. Reid of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 30 May 2005 11346 of 2004 J Bolzan, V Dimitri and Flyover Pty Ltd v Leichhardt Municipal Council JUDGMENT 1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Leichhardt Municipal Council's deemed refusal of a development application for a mixed commercial residential development for the property known as 143-149 Norton Street, Leichhardt. 2 The subject property contains four properties of single storey construction. The subject site is within a conservation area, however, there is no disagreement as to whether the buildings erected on the subject site can be demolished and there is no objection to the demolition of the buildings. 3 The issues in the proceedings are contained in a statement of issues. In summary, they can be expressed as the proposed development is not compatible or is not consistent with the heritage conservation area and council's provisions contained in its LEP and DCP, which I will go into in greater detail later. 4 The subject appeal commenced as an on-site hearing. However, at that time there was not a report from the Court appointed expert and it was considered appropriate by the parties that there be an adjournment and as such the Court also requested that height poles and photo montages be prepared for the subject development application. The on-site hearing was on 2 May and we have resumed back in Court today. In the interim, the experts have conferred, that is Mr Lindsay Fletcher for the applicant and the Court appointed expert, Mr Andrew Smith, consultant town planners. At the on-site hearing there was also the applicant's heritage consultant who prepared the heritage impact assessment for the subject site. 5 The experts agreed on a number of matters that had been raised but there was disagreement as to the impact of the overall height and bulk and scale of the proposed development. 6 Mr Fletcher is of the opinion that the proposed development is satisfactory in the streetscape and that the fourth floor level to Norton Street would be barely perceptible given the step back in the design and the design elements of the proposed development in terms of the parapet at the third level, as well as the pergola elements and that it will not impact in an adverse way on the conservation area. He was also of the opinion that whilst it will be seen from Short Street, this is not something that would warrant the refusal of the application. He considers that the proposed development will only be seen from certain locations along Short Street. However, from the view the Court considers it will be visible and prominently so, from a number of vantage points including in the proximity of the medical centre. 7 The medical centre was part of the character of the area, however, was not portrayed as something that merited a positive element but nonetheless it exists in the context of the area. 8 The proposed development in terms of council's controls of the floor space ratio. The floor space ratio is 1.5:1 for the subject site and the experts agreed that the proposal complies with the FSR. It is noted that the LEP defines FSR and gross floor area and I do not disagree that the proposal complies in terms of council's definitions. I also note they differ from the model provision definitions. 9 The subject site is zoned 'Business' and mixed use development is permissible with consent in the subject zone. There are also other controls or guidelines in the LEP which I will briefly go to. Clause 7(3) of the LEP requires that consent shall not be granted unless the consent authority has taken into consideration the objectives of the plan and is satisfied the development is consistent with those objectives. 10 The general objectives of the plan, in particular those highlighted at the hearing, are under cl 13(2)(b) and (c) "to protect, conserve and enhance the area's heritage and to provide an environment meeting the principles of good design." 11 The heritage conservation objectives include: (a) to protect, conserve and enhance the cultural heritage including places, buildings, works, relics, townscapes, landscapes et cetera. To provide measures for their conservation. (b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes, including the natural scenic and cultural attributes. (c) to prevent undesirable incremental change, including demolition which reduces the heritage significance of places, conservation areas or heritage items. 12 The subject buildings are not heritage items. There is a heritage item known as the Royal Hotel at 156 Norton Street, which is diagonally opposite on the south-western corner of Short and Norton Streets. The proposed development is visible but it was generally agreed that the proposal would not impact on the heritage item per se. The issue to my mind is the impact on the conservation area. 13 The other controls in the DCP relate to the commercial neighbourhood of Leichhardt and it is important to note that in Leichhardt there are a number of precincts for the commercial area. The subject site is within the precinct between Allan Street and Wetherill Street on Norton Street, known as 'Centro' and described as follows: From Wetherill Street to Allan Street the character is typified by a mix of two-storey commercial buildings and low scaled row and detached housing. This part of Norton Street is known for its cafe culture, mixture of small specialty shops and local provision shopping. The increasing popularity of cafe dining has seen many of the small local businesses converted to cafes or coffee shops and there is a level of homogeneity taking place. 14 The DCP also contains provisions for the desired future character and for the precinct known as 'Centro' this reads as follows: To retain and enhance the small scale dwellings used for both residential and commercial purposes, provide complementary design that protects and enhances the heritage significance of the conservation area, promote the viability of neighbourhood and local provision shops whilst retaining a mix of cafes, restaurants and speciality shops, enhance pedestrian amenity by ensuring continuous weather protection, encourage redevelopment to reflect the small shopfront character of the area. 15 The other provision relating to Centro in terms of additional controls state that "large scale commercial development along this section of Norton Street is discouraged and where appropriate original buildings should be retained." In respect of these provisions, it has already been agreed that the buildings can be demolished. The provision only refers to 'commercial development' (while in hindsight this could be more encompassing and refer to mixed development) and taking a commonsense interpretation of the provision, the proposed development cannot be said to be caught by this provision. 16 At this point in my judgment I will say that the application fails, despite the fact that the proposal complies with the FSR. It was agreed between the experts that FSR is not necessarily an indicator of bulk of a building and Mr Fletcher refers to the fact that in many more modern instruments, envelopes are provided. And clearly envelopes provide greater certainty in the type of development that is contemplated in terms of the bulk and, in particular, in terms of streetscape. 17 However, on a merits assessment of the application I am of the opinion that the proposed development does not warrant approval and I say this for a number of reasons. The Court considered that it was a most instructive and informative exercise to provide height poles to allow one to more clearly and accurately, visualise what the proposed development would be in terms of the streetscape. And I say this in the context of both Norton Street and Short Street. 18 The applicant maintains that there are many buildings within the vicinity, (vicinity was not defined) including council's buildings, the medical centre and others, of greater height and bulk. However, in my assessment the DCP clearly contemplates that this part of Norton Street, between Allan and Wetherill, be considered as a particular precinct and it is also clear that the development in this block is one that is predominantly two-storey. This is not to say that a development of three-storeys designed to reflect a predominant two-storey presentation to Norton Street would be inappropriate. 19 One cannot say the proposed development is not well designed. The verticality is maintained, although it could be maintained even further in that there are currently four properties that will be read as two properties fronting Norton Street but nonetheless there has been thought and consideration to the architectural detailing. This however, does not overcome what will be a building that, in simple terms, is too tall and out of context in the streetscape of Norton Street. I will further say that this is in terms of the long views or the oblique views when one is walking on the opposite side of the road along Norton Street. Yes there are some unsympathetic buildings on the opposite side of the road, but the subject block of shops or shopfront businesses with some shop top housing on the eastern side of Norton Street defined by Allan and Wetherill, is clearly one of predominantly two-storeys and future development should respect the conservation area in terms of the predominant built form. 20 As I said, this does not mean that a three-storey development could not be appropriately designed for the subject site. However, the development application that I have before me, which I must consider, is not appropriate in the context of the streetscape. 21 For the bulk of the building the FSR is not a true reflection because of the car parking that is devoted at ground level for the subject development. I accept that the carparking is not included in FSR but it clearly increases the bulk of the building. Also from certain parts of Short Street, the building will be clearly visible. The access handle at the rear of the site, for the purposes of the calculation can be included in the FSR, but one must have regard to the juxtaposition of the rear elevation of the proposal to the fine grained urban fabric of the dwelling house that one sees immediately to the east of the laneway on Short Street. The proposed development does not create adverse impacts on the residential precinct in terms of privacy overlooking or other impacts that would warrant refusal of the application. However, in terms of consideration of the context the proposal is not appropriate for the subject site. 22 The issue of consistency and development being complementary has been discussed in a number of judgments. One in particular is that of Bignold J in Dem Gillespies Pty Ltd v Warringah Council [2002] 124 LGERA 147 at 166 where he stated: "Agreeing or accordant, not self-imposed or self-contradictory, consistently adhering to the same principles, course et cetera." 23 Consistent in terms of the Macquarie Dictionary definition is as cited above and another definition is "holding firmly together, cohering" and I am not satisfied that the proposed development is one that would be consistent with the heritage conservation area in that it is being a built form that is out of keeping with the area itself and it will not enhance the heritage conservation area. Clause 7(3) requires the proposal must be consistent with the objectives of the plan and cl 13(2)(b) is also offended by the proposed development, that is "protect and serve and enhance the area's heritage." 24 Compatible: I am of the opinion that the proposed development is not compatible in the streetscape of either Short Street or Norton Street and for compatible I once again refer to the Macquarie Dictionary definition: "being capable of existing together in harmony, capable of orderly, efficient integration with other elements in a system." The proposed development in my assessment is incompatible or not compatible with the heritage conservation area as we see it today. 25 Mr Fletcher argued that "the area is one that would undergo change and in terms of council's controls, there is conflict." However, one must always have a holistic reading of an instrument and a commonsense interpretation of what is sought to be achieved and just because one objective may be to maintain or to enhance the vitality of an area does not mean this should override other clear objectives of council's LEP and DCP where it is contemplated that development should be consistent with the future character as described in the DCP. 26 In terms of what Mr Fletcher said about the area undergoing change, yes there will be change in this area but council has a clear vision of the type of development that is contemplated for the area in conservation terms. In terms of precedent it is only human nature for people to consider that if this development is appropriate, then clearly the character of the total area would change over time. I do not accept that the medical centre in Short Street can be used as a cue, not that the applicant argued same. It is one development within the area and yes it is part of the context, but it is not something that should be mirrored in this part of Norton Street in terms of its height. And as I said, it is only human nature for nearby landowners with similar circumstances to expect consistency in decisions of developments that may be approved. While, I do not need to go to the issue of precedent in refusing this application as it fails in terms of its merits assessment, nonetheless approval of the application would also be an undesirable precedent. 27 The issue of the proposed development being satisfactory in terms of SEPP 65, urban design, must also be considered by me as the consent authority and I am not satisfied that the proposed development warrants approval in terms of SEPP 65. This was not raised as an issue in the proceedings but as the consent authority I must be satisfied that the development warrants approval in terms of the ten principles identified in SEPP 65. In particular, the principles of site and context. In terms of context it is noted in the architect's statement for SEPP 65 that: "Norton Street is the premier commercial strip in Leichhardt. The street has undergone considerable change in recent years with a number of significant developments along its length, including the Italian Forum and the Norton Street Plaza development. These developments are substantial both in bulk and scale and have significantly altered the character of the southern end of Norton Street from a low scale, semi-residential street to a more urbanised, predominantly commercial street. This scale of development has not, as yet, been introduced to the southern end of the commercial area of Norton Street, which currently maintains a smaller scale based on the original allotment size and building heights." 28 Clearly, a character has been identified in this part of Norton Street that should be retained. Development on the southern end of Norton Street does not provide justification for the proposed development on the subject site. 29 The proposed development is four-storeys and the four-storeys will be read in the streetscape, despite stepping back of the development and other architectural detailing. The development proposes three commercial spaces fronting Norton Street and 9 residential units with 12 off street parking. There is no dispute that the parking complies with council's controls that calls for ten spaces and in this regard the proposal is satisfactory but on the other hand, the extent of the parking at the ground level has certainly 'jacked' up the development in terms of it being an inappropriate height, bulk and mass. Therefore, in terms of SEPP 65, in my assessment the proposal offends the principle of context and scale. Scale in terms of SEPP 65, is: Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of the existing development. In precincts undergoing transition proposed bulk and height needs to achieve the scale identified for the desired future character of the area. 30 And in this regard my comments earlier in terms of the desired future character under the DCP, the proposal fails as well. 31 It was common ground during the proceedings that the proposed sites could be redeveloped. The purpose of the Court in these proceedings is to look at the redevelopment proposed. There is no question that there is potential for redevelopment of the site and still retain the character and the fine grain of the narrow allotments within the one development but, overall, a four-storey development in the location is inappropriate, despite the fact that the FSR may be complied with. 32 The subject site is 19 m by some 38 m, with a 3 m wide access handle at the rear, yielding an overall site area of some over 800 sq m. It is noted that there is a fall in the land such that on the southern end, east to west, there is a 1.3 m fall and on the northern end a 1.8 m fall. The streetscape is one that clearly reads the stepping down of the topography and the proposed development would interrupt the reading of the topography in the streetscape of Norton Street, which is a most important streetscape to be enhanced in terms of the conservation area. 33 On the basis of my assessment of the proposal in its context and the framework of the LEP for Leichhardt, Leichhardt Environmental Plan 2000 and Development Control Plan 2000, the proposed development is one that does not satisfy the provisions articulated in the plan and the DCP. And on an overall merits assessment in terms of s 79C, the proposed development is one that would have an adverse impact on the built environment and the proposal is inappropriate for the site. Furthermore, the proposal in terms of SEPP 65 also fails in terms of scale and context. 34 Therefore, the orders of the Court are: 1. The appeal in respect of the properties known as Nos. 143-149 Norton Street, Leichhardt, is dismissed. 2. The development application submitted to Leichhardt Municipal Council, and as amended, for a four storey mixed development containing: three commercial shops at ground level, nine residential units over three levels; and at ground parking for 12 vehicles, is determined by the refusal of consent. 3. The exhibits are returned to the parties. 4. There is no order as to costs. ________________________ J S Murrell Commissioner of the Court Ljr/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. 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.