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. 15 In this context, it is to be noted that the balconies on the Mary Street frontage, from the fourth to the seventh levels, of the southern portion, protrude, at their angular points, ~ 450 mm beyond the building line into the airspace of Mary Street. The positions of the parties 16 During the course of the hearing, Mr Staas, in response to matters raised during the course of his evidence, prepared a sketch of what an alternative proposal might look like. This sketch was drawn in response to a number of concerns raised by Ms Leong, the council's planner, and Ms Desgrand, the council's heritage expert. That treatment is shown immediately below as it helps define the ultimate position that was submitted on behalf of the applicant and the council in these proceedings. 17 In essence, in their final submissions, the positions of the parties were that: - For the council, if I were not to refuse the application outright, I should not approve anything more than that depicted immediately above; and - For the applicant, if I were not to approve that shown in the photomontages earlier in this decision, nonetheless that depicted immediately above is acceptable and should be approved. The numerical controls 18 The relevant height and floor space ratio (FSR) controls are found in maps forming part of the South Sydney DCP. For the site, they set a height limit of 15 m and an FSR of 2:1. This development control plan, in 2.2 of Part E, sets the performance criteria for assessing the maximum FSR a site can achieve by reference to a number of environmental constraints. These performance criteria are: 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 * capacity of the community infrastructure and the road network to support the development. 19 This development control plan also provides circumstances where a bonus can be added to the FSR, giving, for the site, a resultant FSR of 2.25:1 if the proposal satisfies the controls in 2.2 of the South Sydney DCP (dealt with at (22) et seq below). 20 This development control plan provides, further, circumstances where the height and FSR provisions, even taking into account the awarding of the bonus, can be exceeded further. It does so in the following terms: Where a site is seen as capable of taking an FSR or height above the limit, and still satisfy environmental and amenity considerations, the onus is on the applicant to demonstrate to Council, by way of a detailed assessment of the urban context, that the site is capable of taking such increase. 21 It is this provision that the applicant relies on in support of this non-compliant proposal. The southern part of the proposal exceeds the maximum by ~ 12 m and the overall floor space ratio of the proposal is 4.7:1. What are the correct provisions of the South Sydney Development Control Plan? 22 During the course of preparing this decision, I went to the provisions of the South Sydney DCP published on the council's website. There, I discovered that the version of this development control plan published electronically differed, in a potentially relevant respect, from the version of this development control plan that had been tendered in the council's bundle. 23 As a consequence, I arranged for a further mention of the matter when I explained my concerns to the representatives of the parties and provided them with a copy of the relevant pages (printed from the electronic version of this development control plan and photocopied from the council's bundle). I then adjourned the matter to further mention to enable Mr Hawkes, the solicitor then appearing for the council, to obtain instructions on what was the correct version. 24 When the matter was mentioned a second time, Mr Hawkes informed me that the version I had accessed electronically was the correct version and that which had been tendered was not. The matter was further adjourned to permit the council to consider: o whether or not it wished to make an application to reopen the matter and agitate any matters arising from the correct version of this development control plan that had not been pleaded and canvassed during the earlier hearing; and o the council's attitude to the additional costs that had been incurred by the applicant as a result of the necessity for me to bring the matter back before the Court. 25 I subsequently received an agreed communication from the parties indicating that the council did not wish to seek leave to reopen the matter and that agreement had been reached between the parties on the question of costs. I reproduce below, so that this position can be understood, the relevant element of the two conflicting versions of this development control plan. The first of these versions is the correct one. Internet version Controls The FSR does not exceed the maximum FSR indicated in the FSR Map of this DCP. A bonus floorspace incentive of up to 0.25:1 of the total site area, may be applicable to sites requiring the provision of: * Dedication of land for wider pedestrian and/or cycle paths, additional useable public open space, new streets, bus and traffic turning lanes, pedestrian links, corner splays, etc, and where appropriate the treatment of those spaces. Only those elements in addition to Section 94 requirements; * provision of the right of public access in otherwise private space (through a positive covenant on title) and other encumbrances over land for through-site pedestrian links, access to large internal courtyard spaces, etc. (The granting of a bonus for treatment of these spaces will not be given as these would occur normally); * Streetscape, bicycle, and pedestrian enhancement works such as widened footpaths, footpath and kerb reconstruction, street tree islands, local parks achieved through road closures, flush entry thresholds, nodal treatments, pedestrian crossings, bicycle paths, upgraded lighting, overpasses and underpasses, traffic management facilities etc; * Public art, thematic street furniture, fountains and water features; * Social development projects such as provision and upgrade of community buildings; * Stormwater amplification, integrated water treatment facilities and large-scale detention systems and other civil infrastructure projects; * Public transport projects such as bus priority projects, subsidisation of embryonic bus services, feasibility studies and promotion initiatives; * Enhancements to existing parks such as play equipment, lighting, sports facilities, furniture, landscaping, etc. * Aerial bundling or undergrounding of cables, improved street lighting, new street masts, solar lighting etc; * Any other works or improvements at the discretion of Council However, in instances where it can be justified on environmental and amenity grounds and Council considers it suitable to exceed the maximum FSR provisions contained in Section 3.2 Elements of the Urban Framework: Built Form, that any floor space proposed above the maximum identified on the FSR map will be calculated as bonus floor space in all cases. and will require public domain improvements above those generated by the floor space bonus indicated on the FSR map. Tender bundle version Controls The FSR does not exceed the maximum FSR indicated in the FSR Map of this DCP. A bonus floorspace incentive of up to 0.25:1 of the total site area, may be applicable to sites requiring the provision of: * dedication of public open space, including plazas, atria spaces etc in addition to Section 94 requirements; * through-site links in large development sites; * public art; * street closures; * any other works or improvements at the discretion of Council 26 The differences between the two provisions relate to what contributions might be negotiated by the council (and for what they might be applied) as public domain contributions for awarding by the council of any bonus FSR above the base FSR levels provided for in this development control plan. 27 As the matter was not raised by the council in its contentions and no leave has been sought and obtained to reopen in this regard (coupled with the fact that the applicant has made no offer of a public domain contribution and I have no power to require one), I am satisfied that these differences play no role in my assessment of the present proposal. The site inspection 28 I inspected the location of the site and viewed it from a variety of locations along both sides of Mary Street between the Reservoir Street and Campbell Street; from Beauchamp Lane; from two residences with frontages to Commonwealth Street (which residences are located immediately across Beauchamp Lane to the east of the site); from locations in Commonwealth Street, Reservoir Street and Campbell Street; and from the roof terrace of the residence at the uppermost level of the adjacent converted warehouse building (on the north-western corner of this building). 29 During the course of the site inspection, I heard informal evidence from the residents of the three premises I visited together with commentary, at various relevant locations in the streetscape, from the parties' experts. 30 I note that, during the course of the inspection in Beauchamp Lane, in response to concerns raised by the residents about management of waste disposal from the site, the applicant agreed to a condition that waste disposal from the site, which is to be by private contractor collection rather than by the council's waste collection service, should be on a different day to the day of the council-operated collection service. The issues 31 The only issue, in a strict town planning sense, is whether or not the proposal justifies its departure from the height and FSR controls. In this regard, it is agreed by Ms Leong that, if there were no requirement to satisfy these controls, the modified position proposed by the applicant as being an acceptable outcome to it, that of the removal of one storey, was satisfactory in a town planning sense. 32 Second, Ms Leong agreed, after close questioning by Ms Duggan, barrister for the applicant, that there were no privacy and overlooking issues. However, nonetheless, she considered the presence of the structure, as proposed, to be unacceptably overbearing of the residences fronting Commonwealth Street to the east and would have an unacceptable impact in blocking their views to the sky. 33 Third, Ms Desgrand says that the proposal has a number of unacceptable heritage impacts. These, as I understood them, were that: o the proposed height on the southern side does not provide an acceptable transition between the converted warehouse and the proposed development; o the extent to which the facade of both elements of the proposed building comprise un-rendered face brickwork is unacceptable but could be cured by the rendering and painting of elements of the portal section of the building with the painting to be in a light neutral colour dissimilar to the colour of the converted warehouse to the south; o the projection of the upper level balconies of the proposed building – both as to their extent and to the shape of their projection was uncharacteristic and not acceptable in the streetscape of the conservation area on the western side of this block of Mary Street; o the presentation and fenestration of the upper levels at the rear was unacceptable as a presentation to Beauchamp Lane; o the extent of the exposed brickwork at the lower levels at the rear was also an unacceptable presentation to Beauchamp Lane; and o finally, the joinder of the proposed building with the Chinese Masonic Hall at its north-western upper corner was inappropriate. 34 The residents raised additional issues concerning privacy and property values. With respect to this latter point, the residents were informed, during the course of the site inspection, that impact on property values, to the extent that there might be any (if there were any), was not a matter for planning consideration. Demolition of the existing building 35 The existing building is classified, in its conservation area context, as being a neutral building. The City of Sydney Heritage Development Control Plan 2006 makes provision for the circumstances in which such neutral buildings may be demolished. The provision is in the following terms: (1) Demolition of neutral buildings will only be considered where it can be demonstrated that: (a) restoration of the building is not reasonable; and (b) the replacement building will not compromise the heritage significance of the heritage conservation area or heritage streetscape. 36 As I understood the position, the council does not oppose the demolition of the existing building merely contests the design of that which is proposed to replace it. Consideration of the issues 37 A number of the issues may be dealt with, conveniently, in short compass. These relate to privacy and the relationship of the proposed development, in its top north-western corner, to the Chinese Masonic Hall. Privacy 38 It was Ms Leong's evidence, eventually, that the various privacy elements incorporated in the design at the up levels would ensure that there was no unacceptable overlooking of the residential properties with frontages to Commonwealth Street. 39 The nature of the terrace house development of these dwellings means that each of them provides significant opportunities for overlooking the private rear yards of adjoining dwellings. This necessitates, as is always the case in such tightly settled inner urban areas, a degree of neighbourly respect and urban etiquette. In addition, for the more southerly of these dwellings, there is a direct potential for overlooking across the laneway from residences in the converted warehouse building. This, too, requires the same mutual respect arising from the existing development pattern. 40 In addition, the separation distances between any possible overlooking points and the rear areas of any of these dwellings is entirely within the ordinary separation distances considered acceptable in urban residential developments. There is, therefore, no reason why I should depart from the agreed planning experts' position and conclude that there is anything unacceptable in this instance. The parapet of the Chinese Masonic Hall 41 Ms Desgrand expressed concern that the location of the uppermost leading edge of the portal section of the proposed building would be too close to (and would obscure streetscape viewing of) the red pagoda-shaped ornament at the southern end of the parapet of the Chinese Masonic Hall. She considered that this was unacceptable. 42 During the course of the heritage experts' evidence, they were asked to consider the possibility of opening the roof of the balcony in the portal section of the proposal, at that level, to enable this pagoda-shaped ornament to be viewed without having an immediate context of the proposed development. 43 Although there were some differences about the precise nature of the opening, a matter to which I will return shortly, Ms Desgrand agreed that such a treatment, coupled with the amendment that had been made by the applicant to set the facade of this whole element of the proposal 110 mm further back so that the slight protruding element at the end of the Chinese Masonic Hall would be reinforced relative to the proposal, such an opening would remove her concerns about this element of the proposal. 44 Although she preferred an opening that would entirely remove the roof of the balcony of this residential unit, I am persuaded by the evidence of Mr Staas that limiting the opening to the present proposed location of the leading edge of the planter box to the communal open space above would be desirable – as doing so would afford a modest degree of protection to the living space of this apartment from the impacts of the western sun. 45 As a consequence, I am satisfied that the removal of this element of the roof of his balcony, back to the line of the planter box above (when coupled with the removal of the substantial brick pillar, at this level, in the north-western corner of the building) is a satisfactory resolution to that concern of the council. 46 In accepting this position, I also accept that, as Mr Staas proposed and I did not understand was resisted by the council, the balustrade for this uppermost apartment of the portal element should be of masonry rather than the presently proposed glass – with this being desirable in order to provide a closure element of to this part of the development. The height of the proposal 47 It was the evidence of Ms Leong that, absent restrictions arising from the numerical controls, there was no streetscape issue, in Mary Street, from a purely planning sense, why the proposal might not be approved. Indeed, it was her evidence that, at the northern end, adjacent to the Chinese Masonic Hall, she considered that the site could have accommodated a higher development than that which was proposed. 48 There are, on my understanding of the evidence and the competing positions expressed, essentially two matters concerning the height of the building at its Mary Street frontage that are of concern to the council. Each of these relates to the way the proposal links to the adjacent contributory heritage items to the north or to the south. 49 The link to the north, to the Chinese Masonic Hall, has been resolved, to a significant extent, by the adjustment to the upper most balcony of this portal element in as discussed above. However, Ms Desgrand, in her evidence both on-site and in court, considered that this transition would be better if the raw brickwork finish were to be replaced by a rendered finish to this element of the building. 50 As I understood her evidence, such a rendered finish would provide a greater degree of differentiation from the site to the north. Although the applicant would prefer to have the treatment originally proposed, the applicant also indicated, through Ms Duggan, that it was prepared to accept a requirement to render and paint this element. 51 The experts – Ms Desgrand and Mr Staas – agreed on where such rendering and painting would occur, if required, and this is depicted in the sketch prepared by Mr Staas that follows (16). 52 I also did not understand that the applicant vigorously resisted such a change. Whilst I may be wrong in this understanding, nonetheless I consider that, in resolving their heritage issues in this respect, the combination of enhancing the views of the red pagoda-shaped ornament and the rendering and painting of this element of the building (to the extent agreed by the experts) provides an appropriate and respectful transition to the Chinese Masonic Hall. 53 The nature of this transition in a rendered and painted form is also a matter relevant in the more general context, discussed later, of achievement of the general streetscape objectives for infill development in conservation areas. 54 More problematic, however, is the transition between the converted warehouse store to the south and the proposed development. Clearly, in a design and architectural element sense, there is a significant difference between the rectilinear form of the converted warehouse and the recessed and more angular forms of the upper levels of the proposed development. However, the height of that which is proposed, being identical with the parapet height of the converted warehouse, means that, at least in this dimension, the transition between the proposed development and the converted warehouse to the south does not occur at the point of joinder but that visual vertical transition occurs between the elements within the proposed development rather than with the converted warehouse to the south. 55 Although it is clear that the lack of fenestration and any other features of the blank side walls abutting the site, of both the Chinese Masonic Hall and the converted warehouse to the south, clearly reflected an expectation, at the time they were constructed, (as was the evidence from Mr Staas), that there would be further development built next to and abutting these walls, that does not represent the present context where it is sought to demolish and replace a neutral item in the streetscape of a heritage conservation area and where it is now desirable to ensure that there is a respectful and clearly differentiated transition 56 I therefore now turn to the question of the acceptability of the height of the proposal from Mary Street. In doing so, this issue is considered in the context of the facultative provisions of the South Sydney DCP earlier noted and the context that, within the area covered by this development control plan, virtually all new development is likely to be infill development (with the exception of large redevelopment sites such as those in the Zetland or similar larger former industrial sites). 57 As noted above at (18) maximum FSR, which, for a constrained site such as this, will also impact maximum height, is to be assessed against a number of performance criteria. Four of those listed are relevant in the present case whilst the fifth is not. The four relevant criteria are: o overshadowing and privacy o streetscape o parking and landscape requirements o visual impact and views 58 As earlier discussed, I am satisfied that the first three of these criteria are met by the proposal whilst the impact on views from the dwellings with frontages to Commonwealth Street is sufficiently small not to act as an impediment to granting consent to this proposal. As a consequence, as the concentration of the additional FSR to the southern element of the proposal causes the increase in height by height of this element and a more uniformly distributed design would be likely to be unacceptable, I am satisfied that the increased height with removal of one storey from the southern element is acceptable and represents an appropriate redevelopment option for the site. 59 As a consequence, the presentation to Mary Street, with removal of one storey and the adjustments to the treatment of the upper level design of the portal sector (accompanied by the agreed extent of rendering and painting of that element) provides a respectful and distinctive transition between the contributory heritage items to the north and the south of the proposed development. The architectural features of the design, including the balcony angles at the upper levels, reinforces the distinction between this building and those on either side of it in a fashion that is consistent with such a respectful transition. Presentation to Beauchamp Lane 60 At the rear, on the splay in this frontage, I am satisfied that the transition to the Chinese Masonic Hall is also appropriate. Indeed, the upper level vegetation elements of the deciduous trees provide a comfortable and soft transition to the north at that level. The podium levels at Beauchamp Lane are discussed, separately, below. 61 To the south, I am satisfied that the setting back of the leading edge of the building, for its full height, adjacent to the face of the converted warehouse to the south when coupled with the fact that, in the distant views from the north and north-east (as well as in closer views from the east), an element of the unbroken wall and parapet at the upper levels of the building to the south will be retained. The distant views should see all or nearly all this parapet with unfenestrated wall below. These features, coupled with the absence of any service structures on the roof of the proposed development ensures that, from this perspective, including the view from the residences to the east and north-east with frontages to Commonwealth Street will see an appropriate and respectful transition between the proposed development and the building to the south. 62 As a minor matter, however, to ensure that this transition is preserved, a condition of consent is required to ensure that no future structures (such as satellite dishes) can be erected on the roof in the proposed development without that matter being further considered by the council. As a consequence, a condition of consent saying that is required. Commonwealth Street residences and the Beauchamp Lane podium 63 It remains, therefore, to consider questions of the presentation of the upper levels of the southern section of the proposed development when viewed from the residences with frontages to Commonwealth Street and the question of whether or not, as pressed by Ms Desgrand, the podium level facing Beauchamp Lane, above its lowest level, should be rendered and painted in the same fashion as is proposed for the portal element fronting Mary Street. 64 I have earlier dealt with the question of privacy from the proposed development's proposed southern element and concluded that there are no issues warranting consideration or amendment to the proposal arising from that. 65 However, separately, Ms Desgrand raised the question of the orientation of the windows facing Beauchamp Lane in the upper levels of the southern of the proposed development. These windows, which are narrow, horizontal windows, would, in her preference, be vertical slot windows of similar dimensions. Mr Staas was of the opinion that there was no necessity for such a change and that to seek to do so would be to otherwise interfere with the integrity of the architectural design. 66 These windows will be a distinctive element in the Beauchamp Lane streetscape. However, only limited views of the features of that streetscape can be perceived because of the width of Beauchamp Lane. Such fenestration as is presented directly to Beauchamp Lane by the buildings to the north and south of the proposed development, the two contributory heritage items, is significantly different. That of the converted warehouse is essentially nearly square whilst of that of the Chinese Masonic Hall comprises conventional rectangular windows. There is nothing in the other elements of the remaining broad jumble of residential development that presents any particular consistency or clarity of fenestration presentation to Beauchamp Lane. As a consequence, I do not consider that there is any streetscape basis upon which I could order alteration to the design nor is there any design reason why such alteration would be warranted. 67 As to the podium presentation, the brick podium presentation to Beauchamp Lane, showed in the photomontage earlier in this decision, is consistent with that immediately adjacent on the Chinese Masonic Hall. Unlike the frontage to Mary Street which presentation shares two distinct vertical elements capable of being distinguished by the rendering of the portal element, such a position does not apply on the rear lane. 68 As I understood Ms Desgrand's position in proposing that this element be rendered and painted from above the garage door level, it is also to provide a visual transition between the Chinese Masonic Hall, and the proposed development (as the transition to the converted warehouse building to the south is already established). I consider that the option of such a transition on the rear lane frontage is unnecessary because of the constrained nature of Beauchamp Lane and the fact that this is very much a minor thoroughfare unlikely to carry any significant volumes of pedestrian or vehicle traffic. For that reason, I do not consider that it is necessary to provide such a distinguishing treatment to the rear as is necessary for the transition on the Mary Street frontage. 69 Although there will be an alteration to the skyline and the extent to which opens sky will be able to be seen from the Commonwealth Street frontage properties, that impact has been modestly ameliorated by the removal of one level from the proposed development. Although the new outlook will be different, it will not lack visual interest and the deciduous trees, whether in leaf or bare (during the colder months), will also provide an element of softening and interest not otherwise available to these residences. 70 The consequence of all of these matters is that I am not satisfied that there is, in terms of the facultative provision of the South Sydney DCP, any adverse environmental impact on these residences and thus any impediment to permitting this proposal as I require it to be modified. Conclusion 71 I have concluded that the present proposal is unacceptable, primarily because of its unsatisfactory relationship, in its present form, with the contributory heritage item immediately to its south but with, to a limited extent, minor unsatisfactory impacts on the properties to the east fronting Commonwealth Street. However, I am satisfied that the proposal is acceptable, if modified in accordance with the amendments made to the plans during the course of the hearing (coupled with the deletion of one level and rendering and painting in a neutral tone of its portal element and accompanied by the removal of one level from the southern element of the proposal as sketched by Mr Staas during the hearing). 72 Whilst such an outcome does not comply with the strict numerical controls for height and floor space ratio in the provisions of the South Sydney DCP, I am satisfied that, as a site in transition between a large and substantially taller and bulkier building to the south, the converted warehouse, and the smaller scale Chinese Masonic Hall to the north, this infill development satisfies the provisions in the South Sydney DCP where it permits non-compliances with these controls in circumstances: Where a site is seen as capable of taking an FSR or height above the limit, and still satisfy environmental and amenity considerations, the onus is on the applicant to demonstrate to Council, by way of a detailed assessment of the urban context, that the site is capable of taking such increase. 73 I am also satisfied, with the alterations to the upper north-eastern corner adjacent to the red pagoda-shaped ornamentation on the Chinese Masonic Hall coupled with the deletion of a level to ensure that there is an effective distinguishing transition between this building and the building to the south, that there are no unacceptable heritage impacts. I am, in this context satisfied that the resulting building will be neutral in the streetscape and will not merely maintain acceptability in the streetscape, but, because its architectural and design and expression is significantly different in from that of the contributory heritage items to the north and to the south, it provides a counterpoint to them permitting a better appreciation of those items. 74 Indeed, I am of the view that to require a flat face to the building, by deletion of the balcony elements that are forward of the Mary Street building line, would diminish the visual separation provided between the two contributory heritage items and that would be contrary to the objectives in the Heritage DCP. 75 For these reasons, I have concluded that the proposal, with the deletion of one level and the other changes agreed and discussed would warrant approval. 76 For the purposes of the record, I note that, although a number of amendments were made to the plans during the course of the hearing, I am satisfied, for the purposes of s 97B of the Environmental Planning and Assessment Act 1979 that these amendments, individually and collectively, are minor and no order for costs pursuant to the section is required in these circumstances. Orders 77 As a consequence, when revised plans and amended conditions are provided to the court in accordance with this decision, the orders of the court will be: 1. The appeal is upheld; 2. Development Application D/2009/78 for the demolition of the existing building at 20 to 22 Mary Street, Surry Hills and its replacement with a mixed use residential and retail development is determined by the granting of development consent subject to the conditions contained in Annexure A; and 3. The exhibits, other than Exhibits 1, 8, B, E, F, K, L and M, are returned. Directions 78 In order to give effect to this decision, I make the following directions: 1. The applicant is to file and serve plans reflecting this decision by the close of business on Friday 9 October; 2. The respondent is to file and serve (electronically by e-mail to the Court marked for my attention and in hard copy) settled conditions reflecting this decision by the close of business on Friday 16 October; 3. Liberty to re-list before me two days notice if there is any dispute between the parties about the terms of the plans or the conditions necessary to give effect to this decision; 4. The matter is set down for callover before the Acting Registrar on Thursday 22 October; and 5. If directions (1) and (2) are complied with, I will make orders in chambers and vacate the callover before the Acting Registrar. Tim Moore 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.