Land and Environment Court of New South Wales CITATION : Hutton v Sydney City Council [2007] NSWLEC 803 Applicant: Hamish Hutton PARTIES : Respondent: Sydney City Council FILE NUMBER(S) : 10897 of 2007 CORAM: Roseth SC KEY ISSUES: Development Application :- conservation area DATES OF HEARING: 05/12/2007 DATE OF JUDGMENT: 11 December 2007 Applicant: LEGAL REPRESENTATIVES: Mr C Ireland, barrister instructed by Mr W Allen, solicitor of Carneys Lawyers Respondent: Mr S Kondilios, solicitor of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 11 December 2007 10897 of 2007 Hamish Hutton v Sydney City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Sydney City Council (the council) of a development application for alterations and extensions to the existing terrace house on lot 1 DP 974990, known as 31 Bent Street, Paddington. The site 2 The site is at the northwest corner of Bent Street and Stewart Street. Its rear boundary is to Regent Lane. It has a trapezoidal shape, with a 4.5m frontage to Bent Street and an 8.3m boundary to Regent Lane. Its area is 190m2. The average fall from front to rear is 2.2m, or about 17%. The site is within the Paddington South Heritage Conservation Area (CA 38) and adjoins the Gordon's Grant Heritage Conservation Area (CA 26). There is currently no vehicular access from Regent Lane. 3 The existing house is a two-storey Victorian terrace in poor condition, built to the south and north boundaries. The property is identified as a contributory item In the Conservation Area. The existing building is one of three; having been built in 1901 together with its northern neighbours Nos 29 and 27. South of the site are two heritage items, Nos 33 and 35-37. In all directions the predominant development is two-storey Victorian terrace houses. Regent Lane is flanked mainly by garages, some double and some single. The roofs of some garages are used for recreation. The proposal and its history 4 The applicant proposes to renovate and extend the existing terrace house. That part of the proposal that pertains to changes within the existing building is not in dispute; for this reason it is not necessary to describe it in detail. The dispute relates to the part of the proposal behind the existing building. The applicant proposes to excavate the rear yard to a depth of about 1.3m in order to extend the lowest level of the renovated house (a new level that is below the existing ground floor) to the lane. The middle level also extends to the lane to form the roof of the garage. The upper level is used as private outdoor space. 5 The applicant lodged the development application in May 2007. Following notification, the council received eight objections, including three from the northern neighbour, No 29. Following negotiations between the parties, in August 2007 the applicant submitted amended plans, which responded to some of council's concerns, though they also increased the Floor Space Ratio (FSR). The applicant lodged the appeal against deemed refusal in September 2007. Relevant planning instruments and policies 6 South Sydney Local Environmental Plan 1998 (the LEP) zones the site Residential 2(b). South Sydney Development Control Plan 1997 – Urban Design (the Urban Design DCP) establishes performance standard, objectives and controls for, among other things, private open space, landscaping, FSR, height and scale, setbacks, façade treatment, visual and acoustic privacy, site layout and parking. City of Sydney Heritage Development Control Plan 2006 (the Heritage DCP) establishes controls for heritage conservation areas. Reference to this document during the hearing was mainly to its objectives, which are covered by the other instruments. Matters in contention 7 The council lodged a Statement of Contentions containing ten matters in contention, relating to such things as zone objectives, bulk, height and scale. However, during the hearing it became clear that the council's objections relate to specific elements of the proposal. It is therefore more helpful to deal with the matters in contention by referring to those elements of the proposal that are in dispute, namely: · the 8.3m wide garage, which the council wants to be a single garage; · the private open space, which is the roof over the family room and garage and which the council wants to be at ground level, with the roof garage not being accessible for recreation; and · the FSR of the proposal, which is 1.43:1 and which the numerical controls in the Urban Design DCP limit to 1:1. The objectors' evidence 8 The Court heard the evidence of Mr Patrick Sullivan, whose son, Luke, is the owner of the northern neighbour, No 29. Mr Sullivan's main objection is to the elevated private open space. The private open space at No 29 is at RL 63; the proposed private open space on the subject site is at RL 64. As a consequence, Mr Sullivan is concerned about the proposal's impact on his private open space. While he accepts that overlooking is unlikely, he considers that the 1m difference in level would have an adverse impact on him in the form of noise and the height of the planting box. Mr Sullivan is also concerned about the impact of the proposed excavation, which is likely to be below the footings of his son's property. Mr Sullivan's other objection relates to the proposal's adverse impact on the conservation area. 9 Mr Scott Lockrey, explained his objections on behalf of Mr and Mrs Arnott, the owners of 66 Regent Street, the rear yard of which is across the lane. The objection is to overlooking from the roof of the garage and to the excessive FSR. Mr Robert Mueller, who owns 62 Regent Street, said that he was also concerned about being overlooked. Single garage, double garage or 8.3m wide garage? 10 The proposal includes a garage at the Regent Lane boundary extending the entire 8.3m width of the property. The garage door is 6m wide. In the opinion of Mr Anthony Smith, a heritage architect who works for the council, a single garage is more appropriate in a conservation area in Paddington than a double garage. A single garage would allow the original wall facing Stewart Street to remain and would not bring the garage right to the southern boundary of the site. Ms Jennifer Hill, a heritage architect retained by the applicant, said that a double garage does not detract from the conservation area, the lane has low integrity, and there are other double garages facing it. Mr Andrew Darroch, a town planner who gave evidence in the applicant's case, said that, from an urban design perspective, there is no difference between a single garage, a double garage or an 8.3m wide garage. If a single garage were built, the area to its south would be in constant shadow, so it would not be useful open space. 11 I cannot find any guidance in the Urban Design DCP dealing with single versus double garages. I agree with Mr Smith that a single garage is more appropriate in a conservation area than a double garage. I can also understand the applicant's desire to provide, in an area where there is little on-street parking, two off-street parking spaces. A compromise may be to construct a single garage with a car space to its south. However, a double garage, if it does not come to the southern boundary, may also be acceptable. There is no reason why such a garage should be any wider than 6m plus the thickness of the walls. I note that Mr Darroch, in response to a question from the Court, said that the wider garage allows for easier manoeuvring to and from the lane; however, the opening of the proposed garage is 6m wide, so the additional 2m width does not serve to make vehicular movement any easier. A significant advantage of a 6m wide garage would be the retention of the existing wall on the southern boundary and the ability to provide a fence rather than a building at the corner with Stewart Street. Private open space at ground level or garage roof level? 12 The private open space of the proposal is at RL 64, about 1.5m above the natural ground level. It covers the entire rear yard, with the exception of a small landscaped area along the Stewart Street boundary. The best way I can describe it is as a two-storey rear yard. 13 The Urban Design DCP provides some guidance on the location of private open space. Under Part E, clause 1.5 it requires that landscaping at natural ground level constitute at least 25% of the site. In this proposal landscaping at natural ground level is 9%. In Part F, at clause 1.1.1, the DCP requires site coverage to be limited to two-thirds of the site. The site coverage of this proposal is over 90%. In Part F, also at clause 1.1.1, the DCP states that open space above garages will be considered if the site is sloping and the open space is level with the ground floor level of the dwelling containing the main living areas, dining or living rooms. I do not think that this properly refers to the subject site and the proposal. The site does not slope steeply enough to provide for a difference of a whole floor level between front and rear. The level containing the main living room is the second level of the building and it is raised above the natural ground by an average of about 1.5m. The floor below is excavated. 14 In Part F, at clause 1.1.3, the performance criteria include the criterion that garages at the rear are designed as a separate structure to the main building without compromising the provision of open space. Mr Darroch maintains that "the garage component has been designed as a separate structure to the main building and the traditional three part terrace form is maintained". The council's experts disagree. In my opinion, Mr Darroch's statement is not borne out by the facts: the floor of the garage is contiguous with the lowest floor of the terrace building, while its roof is contiguous with the middle floor. The whole structure is integrated and will appear as one, notwithstanding attempts to differentiate it superficially. 15 Mr Labutis and Mr Smith believe that the raised private open space, which is at the same level as, and flows onto, the garage roof, is inappropriate in the conservation area. They believe that separation of the main house and garage is necessary to respond to the typical landscape configuration that occurs in the sites to the north. 16 In my opinion the integration of the new garage with the existing terrace building and the resulting raising of the private open space by about 1.5m above natural ground level are the features of this proposal that most contribute to its inappropriateness in the conservation area. The proposal negates the traditional concept of main terrace house, rear yard and then outbuildings towards the rear lane. It produces a single building, which is too large for its site, and which covers almost all of the allotment. It is a highly unnatural and untraditional form of development. The appropriate level for the private open space is at natural ground level. 17 I qualify the above statement to the extent to which the council's past approval has allowed a departure from its own DCP at No 29, where the rear yard is at RL 63, probably about 0.5m above natural ground level. It would be unfair to require the private open space of this development to be below that of its northern neighbour, the side from which it receives sunlight. However, there is no justification to go yet another metre above the level of the private open space of No 29. Keeping the private open space of both properties at the same level would also resolve the objections of Mr Sullivan. 18 I note that Mr Darroch justified the raising of the private open space on the basis of better solar access. If this were accepted and practised generally, applicants would keep raising their rear yards higher and higher in the search for more sunlight. The result would be self-defeating. In the end there would be no rear yards at natural ground level. Is the FSR of the proposal excessive? 19 As stated above, the proposal has a FSR of 1.43, while the numerical controls of the DCP nominate the maximum FSR at 1.1. However, the Urban Design DCP contains more than numerical controls. It includes objectives and performance criteria for each element of development control. Where a proposal fulfils the objectives and/or performance criteria, it does not need to comply with the numerical control. 20 The objective of FSR is to control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area. The performance criteria of FSR provide that the maximum FSR a site can achieve is determined by the environmental constraints of the site in particular: · overshadowing and privacy; · streetscape; · parking and landscape requirements; · visual impact and views; and · capacity or the community infrastructure and road network to support the development. 21 The proposal with FSR of 1.43:1 does not meet the objective and/or all the performance criteria for FSR control. It is bigger than the overall built form and it detrimentally affects the amenity of the area. It fails to meet landscape requirements and causes adverse visual impact. The increase from the FSR of 1:1 in the numerical control is not justified. 22 I note that Mr Darroch argues for the increased floor space on the grounds that the additional floor space cannot be perceived since it is either in the roof or under the garage roof/private open space. I do not think that this is correct in respect of the area under the private open space. However, I accept the argument in respect of the additional floor space within the roof, where it really does not add to bulk. Mr Darroch measures the attic as 36m2. If the proposal had a FSR of 1:1 plus 36m2, (ie about 1.2:1), from that point of view, it would be acceptable. Compliance with zone objectives 23 The council's Statement of Contentions includes the contention that the proposal does not comply with the objectives of Zone 2(b). Those objectives generally go to the need for enhancing amenity and staying in character with existing development. For reasons explained above, the proposal does not meet the zone objectives. Conclusions 24 The scale of a conservation area in Paddington originating in the early 1900s is smaller than that of new suburbs on Sydney's outskirts. Those who choose to live in such conservation areas do so in order to enjoy the benefits of location and character. Living in a conservation area, however, involves not only enjoyment, but also the obligation to preserve the character that is the source of the enjoyment. The obligation means accepting the more modest scale and character of housing of earlier times and eschewing the current tendency towards large houses that dominate their site. 25 This proposal fails because it proposes to cover the entire rear part of the allotment with building, creating, as it were, a two-storey rear yard. The fact that it cannot fit into a FSR of 1:1 (a generous standard for density, usually applied to residential flat building zones), demonstrates just how much of a misfit it would be in the conservation area. 26 In order to approve the proposal I would have to disregard several requirements of the Urban Design DCP. Apart from the fact that I consider these to be sensible requirements, I am conscious of two judgments (not cited during the hearing) that are relevant to this. In Zhang v Canterbury City Council (2001) 51 NSWLR 589 it was held that the relevant development control plan should be the focal point of decision making. The planning principles set down in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, while they refer to planning policies, may be equally applied to development control plans. According to Stockland, the consistency with which a policy has been applied in the past contributes to the weight to be attributed to it. There was no evidence before me on the consistency with which the DCP has been applied. The fact that developments around the site appear to the casual observer as if the landscaping controls of the Urban Design DCP had not been applied proves nothing, since the consents for those developments may predate the DCP. On the other hand, if the Court were to disregard the requirements of the DCP, it would give fuel to future arguments against applying the DCP. 27 For these reasons the appeal is dismissed. Orders 1. The appeal is dismissed. 2. Development application for alterations and extensions to the existing terrace house on lot 1 DP 974990, known as 31 Bent Street, Paddington is determined by refusal. 3. The exhibits are returned. __________________ Dr John Roseth Senior Commissioner 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.