Land and Environment Court of New South Wales CITATION : Prouds Jewellers Pty Limited v Ashfield Municipal Council [2008] NSWLEC 1374 APPLICANT Prouds Jewellers Pty Limited PARTIES : RESPONDENT Ashfield Municipal Council FILE NUMBER(S) : 10372 of 2008 CORAM: Murrell C KEY ISSUES: Development Application :- Heritage, height, bulk and scale, amenity and FSR LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan 1985 CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827 DATES OF HEARING: 24/07/08 and 28/07/08 EX TEMPORE JUDGMENT DATE : 28 July 2008 APPLICANT Mr A. Pickles, barrister Instructed by L. Finn of Home Wilkinson Lowry LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 28 July 2008 10372 of 2008 Prouds Jewellers Pty Limited v Ashfield Municipal Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Ashfield Council's refusal of a development application for the property known as 12-28 Parramatta Road, Summer Hill. The applicant is seeking to establish a new headquarters consisting of commercial office space and warehousing for distribution of products to its retail stores. 2 The site consists of nine allotments and has a combined area of 7,178 square metres. No's 16-28 Parramatta Road was previously used as a garden centre and 12 and 14 are currently occupied by residential dwelling houses. The combined site is rectangular in shape and slopes upwards from Parramatta Road to the rear Kensington Road properties. 3 The locality can be described as being on the southern side of Parramatta Road bounded by Dover Street to the east and Sloane Street to the west. The surrounding area is mixed with commercial retail and car related businesses dominating Parramatta Road. However, immediately adjacent to the subject site on Parramatta Road are dwelling houses, residential development also exists south of the property on Kensington Road with dwelling houses and residential flat buildings present. 4 The statutory planning regime or framework is that the subject site is Zoned 3(b) Special Business under the Ashfield Local Environmental Plan 1985 and the development that is permissible within the zone includes boarding houses, car sales yards, car repair stations, dwellings only used in conjunction with commercial premises, motels, motor showrooms, public buildings, shops not exceeding 90 square metres and commercial premises. The only development standard is that of a floor space ratio of 0.5:1. 5 Of particular importance in the assessment of this development application is the conservation area known as the 'North Summer Hill Conservation Area'. This immediately abuts the subject site to its south. Many of the dwelling houses within this conservation area that front Kensington Road, are also heritage items. 6 The main issue in the proceedings is with respect to the impact of the proposal on the North Summer Hill Conservation Area. 7 The LEP contains the standard heritage provisions for consideration of development applications in the vicinity of heritage items; - The aims to retain the identity of Ashfield by conserving its environmental heritage; - To integrate heritage conservation to the planning and development control processes; - To ensure that development does not adversely affect the significance of heritage items and heritage conservation areas and their settings as well as landscapes and streetscapes; and - The distinctive character that they impart to the land to which this plan applies. 8 The LEP contains a schedule of individual buildings and it is noted that many of these Kensington Road properties are listed as having the highest ranking and they are the ones identified as heritage items, many being of Victorian era. The dwellings that have less of a contribution or a negative impact or an adverse impact on the area are designated as Buildings 4. 9 During the course of the proceedings the applicant cited two other documents. I have given little weight to these documents because they are not formalised by way of an exhibition process or endorsement. Nonetheless they do provide some guidance as to future direction, but I recognize the status of these is not imminent and certain and therefore, I have given them little weight. They may be a long term future in terms of the Parramatta Sector 2 Structure Plan. This is a draft document that the Ashfield Council together with the City of Canada Bay referred to the Planning Department, (DIPNR as it then was), for approval to exhibit in 2005. However, it would appear to have not progressed although it was a draft developed by the council itself in response to DIPNR's request for a structure plan for the Parramatta Road corridor. 10 There was a task force established and the task force was to facilitate proposals for the rejuvenation and urban renewal of Parramatta Road within the agreed planning framework in accordance with the metropolitan strategy objectives. The road was divided into four sectors and this is the relevant sector for this part of Parramatta Road, being Sector 2. It is also important to note that Ashfield Council's goals as articulated in this document at Section 2 states: primarily business enterprise zone in keeping with its traditional role. Ashfield Council considers that Parramatta Road and its immediate surrounds are not suitable for new residential development. There are clear limiting externalities. For example, the level of amenity on Parramatta Road is extremely poor and likely to remain so and high rise residential development will also potentially adversely impact adjoining residential areas including the heritage conservation areas. 11 The plan identifies this particular part of Parramatta Road and states for the controls and principles, "acceptable built form outcomes and amenity interface issues for adjacent properties need to be documented and the following broad principles apply -- sympathetic heights, the level of much of the southern side of the road is considerably lower than properties to the rear this allows buildings up to four storeys to match in height with the equivalent of two storey buildings in Kensington Road. For open space buffers it states "any development bounding residential property should have a wide enough area to take large tree plantings that would screen new development." And for acoustic buffer "any new development should be preferably across the full width of the site to create a noise buffer to Parramatta Road for residential properties to the rear and the quality of the architectural presentation of new development should be high". 12 The FSRs for the economics identified in the document state that: "economic incentives are required to enable redevelopment of properties and this would require an FSR of 1.2:1 to 1.5:1 to establish large floor plate bulky goods retail and with a minimum site area of 4,000 square metres. Offices would require FSR in the range of 2:1 to 2.5:1." The current maximum for the business zone is 0.5:1. There area number of diagrams and schedules in the document which identify heights and appropriate building mass to the residential area of Kensington Road." 13 The other document referred to by the applicant is very recent currently on exhibition this was released by the Department of Planning in July 2008. The Inner West Draft Sub-Regional Strategy produced by the State Government for a holistic approach to Parramatta Road. There are a number of key directions and key actions but in summary one of the aims is to promote Parramatta Road as an 'enterprise corridor' and the purpose of this is to look at appropriate development along Parramatta Road. 14 Given the stage and status of the above documents I can only give them limited weight. As such my assessment of the proposed development is focussed on the current controls in particular, the floor space ratio of 0.5:1 and the heritage provisions relating to the adjoining North Summer Hill Heritage Conservation Area. 15 The applicant submitted plans that show a floor space ratio of 0.78:1. There was a great deal of discussion during the proceedings as to what should be included in floor space. I do not accept the applicant's exclusion of certain areas. On the other hand the inclusion of the loading and unloading facilities should not be included in the FSR. The applicant's estimate of the FSR is 0.68:1. On the respondent's planner's calculation it is 0.82:1. In my assessment the FSR of 0.78:1 is a more accurate depiction of the FSR of the proposed development. The FSR is to provide a crude measure of the bulk of a building. 16 As such, a SEPP 1 objection is required for the building and I have assessed the SEPP 1 objection in the context of the principles provided in the judgment of Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 and Wehbe v Pittwater Council [2007] NSWLEC 827. 17 To provide for a more detailed context in which I have considered this development application I refer to the site inspection of the site and the surrounding area. The Court had the opportunity of hearing from a number of resident objectors. The resident objectors were concerned that the proposed development was inappropriate, it was a continuous and unrelenting wall that blocks the horizon and it was stated that this is a massive modern building and it will compromise the conservation area. They are not opposed to development per se but they consider that the proposed development relies on screening from vegetation that currently exists in the rear yards of the conservation areas. 18 The other concerns of the residents include: the height, the unarticulated wall, and no relief provided in the development of the façade to the south. There was also concern that this would represent a precedent and that future development would continue along the road at the same height and if the adjoining properties to the west are redeveloped the impact that this would then have on other dwellings in Kensington Road. 19 The other concern expressed was the visibility of the proposed development from the view corridor that can be seen between the residential flat building at No. 31 and the adjoining building at No. 35. There was concern that this would impact on the heritage significance and the streetscape of the conservation area. 20 The Court also heard from experts in the proceedings: Mr Greg Patch, an architect heritage consultant, provided evidence on behalf of the council; and Mr Peter Romey, architect heritage consultant, provided evidence on behalf of the applicant. Mr Patch is concerned that the proposed development should be more articulated and that it should reflect and have a conversation with the conservation area. His concerns were not that one could see the building as such but that it was inappropriate in that it did not provide a dialogue with the conservation area and reflect elements of the conservation area. 21 I turn now go to their joint report provided to the Court that includes a number of agreed facts as follows: "The critical heritage issue to be considered in terms of the proposed development therefore is not whether the new building will or will not be visible but whether it will adversely impact upon the established heritage significance of heritage items either in the vicinity or in the North Summer Hill Conservation Area. As a result of a combination of factors the generally narrow gaps between the heritage listed houses on the north-east side of Kensington Road, the change in level from the rear yards of these properties to the development site and the extent of retained trees and associated vegetation along the boundary separating the property points from which views of the proposed new building will be available within the North Summer Hill Conservation Area would be minimal. The primary visual impact of the proposed new three and four storey commercial building will be on the north-east Parramatta Road frontage from which its overall scale and bulk will be clearly visible. The overall scale and bulk of the proposed new building when viewed from the north-east frontage will not adversely impact upon the established heritage significance of heritage items either in the vicinity or in the North Summer Hill Conservation Area." 22 As such, the experts agreed that there would be a minimal impact. Mr Patch, however, considers that: while the function and scale of the proposed building does not necessitate the use of traditional architectural language per se measures that acknowledge some deference to the nature of the adjacent listed heritage items in the North Summer Hill Conservation Area should be incorporated in the facade to the south by virtue of a more responsive modulation of the building and a composition that more strongly reflects the predominantly late Victorian character of the listed items. 23 Mr Romey, on the other hand, considers that "the proposal will not negatively impact on the character and heritage significance of the Summer Hill Conservation Area and the individual items at 13 to 29 Kensington Road." He states that the view of the proposed new building from the Conservation Area will be substantially restricted to the wider gaps between the heritage listed houses numbered 19 and 21 and from the non-listed buildings at 3 and 5 and 31 and 35. "Even from these restricted Kensington Road viewpoints the extent of trees and other vegetation is a substantial impediment to views of the proposed new building from the North Summer Hill Conservation Area." He says that: "the proposed new building will be partially visible from the rear yards of most of the heritage listed houses. However, its visual impact will be minor because of the change in the topography and this will reduce its perceived height to be between one and a half and two and a half storeys. The 1.8 metre height of the rear fence will obscure views of the lower part of the building, the substantial horizontal distance between the proposed new building and the rear of the heritage listed houses, (that is, approximately 45 to 50 metres), and the extent of the retained and proposed tree planting along the boundary separating the properties will further fragment views of the building." 24 Mr Romey states further that: "the proposed new building forming a fragmented and recessive backdrop which will only be able to be glimpsed through the wider gaps between the heritage listed houses would not adversely affect these key aesthetic values." 25 In summary, Mr Patch considers the application should be refused in its current form as the design makes no apparent attempt to mitigate visual impacts on the conservation area. Mr Romey, on the other hand, states the fact that partial views of the proposed new building will be available from the rear yards and in some locations through gaps between does not constitute an adverse impact on the heritage significance. 26 In terms of the impact of the proposed development on the heritage significance I agree with Mr Romey that it is not necessary for the proposed new building in this commercial zone given the separation distances, that is, 45 to 50 metres of the heritage buildings but closer for the 1960s calcil brick residential flat building. I do not consider that it is necessary for the proposed façade to defer to the heritage items as such. In my assessment, in the circumstances this would be an inappropriate treatment for this commercial building. In my assessment it does not overwhelm or is not highly visible, and is not visible in its total length of some 85 metres. The most one would see on Mr Patch's evidence is approximately a third of the building at any one time, there is very little opportunity for viewing the proposed building from Kensington Road apart from between Nos 31 and 35 and as such the visibility of the building is somewhat limited. 27 In my assessment I have not relied on the existing landscaping within the rear yards of the heritage buildings as the proposed new landscaping of the development will punctuate the building. Furthermore the separation distances and the change in topography means that whilst it may be able to be seen, which is not the test, it will not significantly impact on the conservation area or heritage items. The North Summer Hill Conservation Area will continue to have special importance. 28 As I stated, the higher portion of the building at some four storeys is will below the height of the calcil brick residential flat building at No 35 Kensington Road that has a separation distance of some 30 metres. The proposal will not be overwhelming to this building or the heritage conservation even though it will be visible when viewed between No 35 and No 31. The deep landscaping for the proposed building on the southern boundary is at a minimum of 5 metres at the rear and this provides the opportunity for deep soil canopy trees to be planted to punctuate the proposed building. It is important that landscaping of the development does not provide for a total screening denying northern sun/solar access to the rear yards of the heritage items and dwellings in Kensington Road. 29 The heritage items are significant and substantial and are representative of an era and their conservation is important. While the heritage dwellings are stately and large at the same time it can be seen that they are on very large blocks of land or rather very long blocks of land and on further consideration that would be less than the FSR of 0.5:1. This is because of their significant rear yards and while the Court did not go into each and every backyard many of them have significant trees. The subject site will also provide its own vegetation to soften the assent of the building. I do not need to rely on the vegetation within the heritage buildings to arrive at the conclusion that the proposed development is acceptable in terms of viewing from the heritage conservation area. 30 The Court also heard from consultant town planners: Mr Geoff Goodyear a consultant town planner provided evidence on behalf of the respondent council and Mr Damien O'Toole provided evidence on behalf of the applicant as did Mr Nigel Dixon, the architect of the proposal. 31 There was a joint statement tendered and I will say at this point that it is not appropriate for the design architect to participate in the joint conferencing of the planners. While at times it is valuable to have the architect of proposals available to the Court, especially for large proposals, it is not appropriate for the architect of the proposal to justify the proposal in a joint statement of independent experts to the Court. As such, in the joint report I have given no weight to Mr Dixon's comments. 32 The concurrent evidence process, however, did allow for Mr Dixon to respond to some of the concerns and Mr Dixon provided an amended plan to reduce the bulk of the building in terms of the rear parapet to reduce the height of the building by some 1.17 metres with a stainless steel railing as opposed to a glass or glazing for the balustrade. 33 The other important amendment to the plan, that was also endorsed by Mr Romey, is to provide for a more articulated treatment for part of the western elevation. In particular for that part of the building that will be more visible, that is, between numbers 31 and 35, that is, for fixed timber louvres to be fitted. In my assessment I agree this is an appropriate response to ameliorate the bulk of this western portion of the building. 34 At the end of the day the bulk does not warrant refusal of the application as the site opportunities and change in topography provide an appropriate 'fit' for this part four storey component having regard to the height of the adjoining development and the change in topography. 35 The threshold question in this matter (even though I have considered the heritage conservation area first in this judgment) is that relating to the floor space ratio. In this regard a SEPP 1 objection to vary the floor space ratio was submitted. As I said, I do not agree with the applicant's planner that the FSR should be calculated on the basis of a particular head office use. Consents run with the land and it would be short sighted and contrived to assess the FSR as described by the applicant's planner. 36 In terms of the SEPP 1 variation the applicant provided a SEPP 1 objection. The council officer also considered that the proposal was appropriate. The SEPP 1 objection goes through the relevant questions required. Firstly the FSR clause is a development standard in the context of the EP & A Act and the objectives of the development standard are to provide for an appropriate bulk and scale and to mitigate impacts on adjoining neighbouring properties. 37 At this point it is important to note that it is a matter of the height and bulk. There is no height restriction in the LEP and in this regard clearly the scale of a commercial development is going to be of a different scale and form from residential buildings. In the circumstances of this case it is the bulk of the building in the context of its juxtaposition with the residential area that is important. 38 The SEPP 1 objection in my assessment is well founded and the purposes or underlying objectives of the FSR standard are satisfied. The purpose is not overtly stated in the clause of the LEP but the underlying objective is to control bulk and mass and minimize adverse impacts on adjoining properties. I am satisfied the proposed development satisfies the underlying purposes of the standard. The proposed development will not present as an inappropriate bulk and mass in the circumstances of this case. The proposed building will not impact on the adjoining residential properties having regard to the separation distances, the interposing vegetation proposed on the subject site and the change in topography, which provides for the opportunity for a larger building on the subject site while respecting the adjoining conservation area to the south. 39 As such, I consider that the FSR of 0.78:1 satisfies the objects of the standard and also satisfies the aims of the Policy and is consistent with the object of the Act for the orderly and economic use and development of land. In my assessment the SEPP 1 variation of the 0.5:1 FSR control should be allowed in the circumstances of this case. 40 In my merits assessment I do not need to rely on or have regard to the future directions document for this sector of Parramatta Road as outlined in the Council's and the Departments draft Strategies, although clearly if adopted in the longer term the proposed development will be one that is also in keeping with the objectives or the future direction and strategies for Parramatta Road for its revitalisation. 41 The Court in its assessment understands concerns of the objectors and the integrity of the conservation area should be conserved and not impacted by proposed development albeit in a different zone. As such my assessment of the application has considered the zone interface. This is most important in the circumstances of this case that the significance and integrity of the conservation area is maintained. 42 In my overall assessment I am satisfied with the relationship of the proposed building to the conservation area and on a merits assessment there are no issues that would warrant refusal of the application. The site is appropriate for the proposed development and whilst the building will be visible that is not the test, the impacts on the heritage conservation area are minimal as agreed by the heritage consultants. 43 Therefore the formal orders of the Court in this matter are: 1. The appeal in respect of the properties known as No's. 12 to 28 Parramatta Road, Summer Hill is upheld. 2. The SEPP 1 objection to vary the 0.5:1 floor space ratio standard is allowed. 3. The development application submitted to Ashfield Council and as amended is determined by the granting of consent subject to the conditions in Annexure A. 4. The exhibits except for 9, A and F are returned to the parties. ___________________ J S Murrell 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.