Silverstar Fashions Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1314

Land and Environment Court of New South Wales

CITATION : Silverstar Fashions Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1314

APPLICANT Silverstar Fashions Pty Ltd PARTIES : RESPONDENT Council of the City of Sydney

FILE NUMBER(S) : 10375 of 2009

CORAM: Moore SC

DEVELOPMENT APPLICATION - SECTION 97 APPEAL :- KEY ISSUES: Heritage impacts FSR and height

DATES OF HEARING: 3, 4, 11 and 18 September 2009

DATE OF JUDGMENT: 29 September 2009

APPLICANT Ms S Duggan, barrister INSTRUCTED BY Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Mr A Pickles, barrister INSTRUCTED BY City Solicitor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

29 September 2009

09/10375 Silverstar Fashions Pty Ltd v Council of the City of Sydney

JUDGMENT Introduction 1 SENIOR COMMISSIONER: Prior to the absorption of South Sydney Council into the City of Sydney, Mary Street in Surry Hills formed the boundary between the two local government areas. The eastern side of Mary Street was in the former South Sydney local government area and, as a consequence, the provisions of the South Sydney Local Environmental Plan 1998 (the LEP), now administered by the City of Sydney (the council), continue to apply to buildings on that side of the street. 2 20 to 22 Mary Street, an undistinguished low scale warehouse premises occupying the width of three former terrace house sites, is located on the eastern side of Mary Street. 20 to 22 Mary Street (the site) is the location of the development proposal that is the subject of this appeal. 3 The site is located between two contributory heritage items within a local conservation area under the South Sydney Local Environmental Plan. To the north, the Chinese Masonic Hall presents a three-storey facade to Mary Street. Red pagoda-shaped ornaments are located at the northern and southern ends of the parapet to this facade. The importance of the southern of these ornaments is a matter to which I will return later in this decision. 4 Adjacent and to the south of the building on the site, with a street address in Reservoir Street but a substantial presence in Mary Street, is located a seven storey Inter-War Commercial Palazzo style warehouse that has been converted and adaptively reused for residential apartments. This former warehouse building, which has a number of rooftop apartments on the level behind its parapet at the top of the building, presents six fenestrated residential levels to Mary Street. 5 The site, the Chinese Masonic Hall and the adaptively reused warehouse have, as their rear boundary, Beauchamp Lane, a small service lane running north-south between Reservoir Street and Campbell Street and parallel to Mary Street. 6 On the eastern side of Beauchamp Lane, directly behind the site but commencing somewhat to the south and extending northward to the corner with Campbell Street, are located two groups of traditional residential terrace houses with frontages to Commonwealth Street. These two groups are also contributory heritage items. 7 A similar group of traditional residential terrace houses is located on Mary Street, to the north of the Chinese Masonic Hall. A Chinese Community Centre is located at the end of this row of houses on the corner of Mary and Campbell Streets. These houses, as a group, are also a contributory item as is the Chinese Community Centre (in its own right). 8 Although the heritage provisions of the LEP apply to the site as do the general developmental controls in the relevant parts of the South Sydney Development Control Plan 1997 (the South Sydney DCP), the heritage provisions of the South Sydney DCP have been replaced by the provisions of the City of Sydney Heritage Development Control Plan 2006 (the Heritage DCP). The proposal 9 The proposal to be considered in these proceedings is one in two visual elements. Between them, the elements combine to constitute a mixed-use development with a small retail space on the ground floor addressing Mary Street. To the north and adjacent to the Chinese Masonic Hall are proposed to be located four levels of residential accommodation with a rooftop and outdoor communal area for the whole residential component of 18 apartments. This element in the proposal would rise from street level to a level equal to that of the returning parapet of the Chinese Masonic Hall. This element is proposed to contain the foyer to the totality of the residential elements of the proposed development. 10 Mr Staas, the applicant's heritage expert, described this element as being a portal element for the development. As a result of a modification adopted by the applicant in during the course of the proceedings, discussed in more detail later in the consideration of the heritage issues, the modified design of the uppermost level of this portal element will now permit (largely if not completely) unobstructed views of the southern red pagoda-shaped ornament atop the parapet of the Chinese Masonic Hall. This portal element of the proposed building occupies approximately the width of one of the three terrace house allotments that originally formed the site. 11 For the approximately two thirds of the site to the south adjoining the warehouse building facing Reservoir Street, the applicant proposes eight residential levels – the roof of the uppermost level of which would be contiguous with the parapet on the top of the warehouse building (although the roof of the proposal would slope slightly away from it and there would be no service structures atop this roof). 12 It is appropriate, at this point, to note that there is an element of car parking, in vehicle stackers, proposed for the site with a garage door opening from Beauchamp Lane at the rear. Behind the proposed retail premises and the entry foyer to the residential area, at the ground level, are located in a number of service facilities such as waste storage areas and the like – these are also, primarily, accessed from Beauchamp Lane. 13 The upper levels of the southern portion of the proposal are splayed away from the point where they abut the wall of the converted warehouse commencing at a point approximately 1 m setback from Beauchamp Lane and then, although architecturally detailed by balconies and the like, splayed in a generally north-westerly direction. A continuous vertical element of the unbroken wall to the warehouse building, some 1 m wide will thus be presented to a person walking south along the narrow confines of Beauchamp Lane with the rendered and fenestrated facade of the proposed southern residential element appearing above the proposed face brick finished podium to Beauchamp Lane. 14 Photomontages of what is proposed, in the plans for which approval was sought, appear below showing, first, the proposed presentation to Mary Street and then the proposed presentation to Beauchamp Lane.