Land and Environment Court of New South Wales CITATION : Jackson Teece Chesterman Willis v City of Sydney Council [2007] NSWLEC 31 APPLICANT Jackson Teece Chesterman Willis PARTIES : RESPONDENT City of Sydney Council FILE NUMBER(S) : 10922 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- six level commercial/retail building, floor space ratio, car parking, height and scale, urban design, bulk and massing, built form, setbacks and facades Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan - Urban Design 1997 DATES OF HEARING: 15/01/2007 and 16/01/2007 EX TEMPORE JUDGMENT DATE : 16 January 2007 APPLICANT Mr V. Conomos, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Ms P. Whitford, solicitor of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 16 January 2007 10922 of 2006 Jackson Teece Chesterman Willis v City of Sydney Council JUDGMENT 1 On 14 June 2006 the Court upheld an appeal and granted conditional development consent in relation to Development Application No. D/2005/2087 which application was for the erection of a six level commercial/retail building at 54-58 Foveaux Street Surry Hills. 2 The applicant in those proceedings has now lodged an application under s 96(2) of the Environmental Planning & Assessment Act (1979) for the amendment of that consent. 3 In essence, the proposal comprises some 20 amendments including changes to: + the modulation and details of the front façade panels, + an enlargement of the floor area on level 6 with associated additional built form, + the provision of a cleaner's maintenance store, + re-arrangement of plant equipment on the seventh level, + re-arrangement of the car parking and unloading facility, + relocation of the common courtyard to the seventh level, an increase in the height of the lift shaft and the rooftop galvanised steel frame/pergola, + various other relatively minor internal changes and modifications. 4 Comprising Lot 7 DP 1093309, the rectangular site has an area of 371 sq m. It has a frontage of 12.2 m to Foveaux Street, a similar dimension frontage to Belmore Lane at the rear and a depth of 30.5 m. 5 The site is included in Zone No. 10, mixed uses, under South Sydney Local Environmental Plan 1998. The proposed development is permissible with development consent. Clause 10 of the LEP requires that consent must not be granted unless the proposal is consistent with the objectives of the zone applicable to the site. The relevant objectives include the provision of a mixture of compatible land uses including commercial, residential and other forms of mutually-supportive development in buildings that incorporate contemporary urban design and energy-efficient principles. Other than perhaps the streetscape concerns, there was no evidence to suggest that the proposed building, as amended, would not meet these objectives. 6 Also applicable to the site is South Sydney Development Control Plan - Urban Design 1997 ("the DCP"). Part E cl 2 of the DCP contains objectives and performance criteria in relation to floor space ratio, height and scale of buildings, setbacks, façade treatment, solar access and overshadowing, height and scale and in-fill development. 7 The application was advertised and no submissions were received. The application was refused by the Council for various reasons, essentially involving non-compliance with the mixed uses zone objective and floor space ratio and height controls resulting in the development having an excessive bulk mass and height in the streetscape and an inappropriate relationship with adjoining buildings. 8 The statement of issues runs to almost three pages, identifying matters of floor space ratio, bulk and massing, height and scale, built form, setbacks and façades in the context of the applicable planning controls. 9 Having inspected the site and its environs and taking into account the expert evidence, the principal issue in the case is whether the altered building would be inappropriate in the streetscapes of Foveaux Street and Belmore Street, taking into account the applicable requirements of the DCP. 10 Expert town planning evidence was given on behalf of the respondent Council by Miss A-M Bunting and on behalf of the applicant by Mr A Betros. These experts provided a joint report for the assistance of the Court. 11 The hearing began on site when particular attention was given to obtaining an understanding of the extent to which the proposed modifications would, by comparison with the approved development, be observable from Foveaux Street, Belmore Lane and Belmore Street. 12 In her oral evidence, Miss Bunting identified several matters which she believed to be of fundamental concern and I accept that these matters are appropriately relevant to the principal issue: 1. The resulting unsatisfactory transition between the proposal and the adjoining two-storey development at Nos 50-52, resulting from the extension of the building envelope towards the western boundary, contrary to the provisions of the DCP. 2. The resulting inappropriate presentation of the development when viewed along Belmore Lane from Belmore Street, particularly taking into account the backdrop of the existing development at Nos 60-62 Foveaux Street. 3. The proposed angled roof form would be out of character with the approved building and would be out of character with existing development in the locality and, as a consequence, would adversely affect the streetscape. 4. The increases in the height of various elements of the development including the built form extensions at the fifth level, the lift overrun, the cleaner's maintenance store at the seventh level and the steel frame which all exceed the DCP height controls. 13 In relation to the first matter, Miss Bunting explained how the proposed floor space extension on the fifth level would be situated predominantly above the 36 degree roof envelope line, projected from the 15 m height control at the boundary, which control is contained in the DCP. As a consequence, it would form an inappropriate transition with the adjoining site at Nos 50-52 Foveaux Street. She also said that the various other increases in building height above the 15 m limit added to the building's bulk and exacerbated this concern. In response, Mr Betros said that despite the non-compliances, the step down towards the adjoining site would be appropriate, taking into account that the likely height and form of development when that site is redeveloped above its present two-storey level. Because the majority of the additional built form would not be apparent, its additional bulk and scale does not indicate any matter of concern. The lightweight steel frame is of no significance in this regard. 14 In relation to the second matter, Miss Bunting explained that in viewing the development from Belmore Street, the additional structures including the angled roof form would be apparent and inappropriate when seen juxtaposed with Nos 60-62 Foveaux Street. Again, these built forms extend significantly above the height controls in the DCP. Mr Betros disagreed, explaining that this locality is one of the most densely developed areas in Australia and that the applicable controls are not here appropriate. Also, the additional built form would not be generally apparent because to be seen requires the observer to look up above normal sight lines. 15 In relation to the third matter, Miss Bunting referred again to the DCP, suggesting that the provisions of s 2.3 dealing with height and scale did not anticipate angled roof forms and, taking into account the absence of such forms in the locality, what is now proposed would be inappropriate. In response, Mr Betros explained that the angled roof form would not be read as such and taking into account the various roof forms in the locality, it would not be out of character. 16 It is clear that the majority of the proposed changes at the upper levels will not be observable above the 36o sight line from Foveaux Street or the sight line from Belmore Lane. These sight lines are applied to positions directly opposite the site, however when viewed more obliquely from the east and west, the changes will be variously able to be seen, taking into account the deciduous street trees. Nevertheless there will not be a great deal of difference between the approved building and the building as now proposed to be modified. 17 In an internal memo, Mr Horiatopoulos Council's Urban Design Co-ordinator, commented that he had no objection to the proposed modifications provided that the new addition is set back from the adjoining property to the west at Nos 50-52 to match the setback of the previously approved development. 18 The proposed lightweight steel frame is to be increased in height so as to more appropriately relate to the adjoining building at Nos 60-62 and I have no concerns in relation to this change. Nor do I have any concerns in relation to the additional built form adjacent to the adjoining building which is significantly set back from both frontages, is lower than that building and is within the DCP's 36o degree roof envelope line. 19 The additional floor space, producing an increased floor space ratio is also not determinative of the application. However I am concerned and agree in principle with Miss Bunting regarding the additional built form that is proposed above the 36o roof envelope line. In my opinion, this part of the proposal does not sufficiently recognise the controls in the DCP as described by Miss Bunting. Whilst the height and form of some surrounding buildings indicates the need for a flexible approach, what is here proposed, taking into account the requirements of the DCP and what has already been approved, in my opinion, is excessive. Although the architect has been largely successful in his attempt at ensuring that this element of the modification proposal will only be seen in part from a limited number of viewpoints, this is but one part of the necessary analysis regarding its impact. 20 The approved design, in this regard, exhibits a relatively minimal excedence of the roof envelope whereas the proposed extension significantly and unacceptably exceeds this. However I have decided that if the offending built form were to be set back in line with the eastern alignment of the approved planter box and the planter box with its wired balustrades retained, this would produce an acceptable compromise. Such an arrangement would significantly maintain the approved external presentation of the sixth level of the building and somewhat reduce the extent to which it will be able to be seen. It will also facilitate a better transitional outcome with any potential redevelopment of the adjoining site. I will incorporate a condition to this effect into the conditions to be attached to the orders. 21 Regarding the angled roof form, I agree with Mr Betros that this would not be inappropriate and it can be retained, although, with the required change to this part of the building, the extent of such a roof will necessarily be reduced. 22 Finally, Mr Horiatopoulos also suggested that the proposed changes to the fenestration pattern of the façade from more vertical proportions to an arrangement with more square proportions would not be appropriate. Instead, the original vertical proportions would relate well with the fenestration patterns of traditional buildings in the streetscape. Miss Bunting agreed, pointing to the fenestration patterns of adjoining and nearby buildings. Mr Betros disagreed, observing that the fenestration patterns of surrounding buildings were quite varied with a mixture of proportions. As a result, the proposed change would not be out of place. Having considered the available plans and photographs, I agree with Mr Betros for the reasons he has given. 23 There was no dispute in relation to the remaining modifications and I see no reason why they should not be approved. 24 The orders of the Court will therefore be that: 1. The appeal is upheld. 2. The conditional development consent granted by the Court on 14 June 2006 for the erection of a six-level commercial/retail building at 54-58 Foveaux Street, Surry Hills is amended in accordance with the conditions of consent in Annexure A hereto. 3. Exhibits B and 6 are retained. ___________________ T A Bly Commissioner of the Court ljr 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. 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