Svedas v Sydney City Council [2010] NSWLEC 1323

Land and Environment Court of New South Wales

CITATION : Svedas v Sydney City Council [2010] NSWLEC 1323 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Sanda Svedas PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 10471 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION - HERITAGE :- demolition of a contributory item within a heritage conservation area

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development

CASES CITED: Helou v Strathfield Municipal Council [2006] NSWLEC 66

TEXTS CITED: Building Code of Australia Residential Flat Design Code

DATES OF HEARING: 26, 27 October and 18 November 2010

DATE OF JUDGMENT: 24 November 2010

APPLICANT Mr C McEwen SC SOLICITOR Gadens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms A Pearman, Barrister SOLICITOR Mr a Singh

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Morris C

23 November 2010

10471 of 2010 Sanda Svedas v Sydney City Council

JUDGMENT

1 Commissioner: This is an appeal under s97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the Sydney City Council (the council) of development application No. D/2010/540 which proposes the demolition of two existing dwellings and the construction of a nine-storey mixed use development comprising basement carpark, ground floor retail/commercial area, and 30 residential units at Nos. 533-535 Elizabeth Street, Surry Hills (the site). 2 There are a number of contentions in dispute however two principal issues need to be assessed. Those are, firstly, whether consent should be granted for the demolition of the two dwellings, which are contributory items within the Cleveland Gardens Heritage Conservation Area. Secondly, if I find that demolition is appropriate, whether the proposed building is suitable for the site. The site and its context. 3 The site is dual-fronted and is located on the western side of Elizabeth Street between Bedford and Belvoir Streets, with Little Buckingham Street providing its secondary frontage and vehicle access. Frontage to each road is 13.44m and 13.455m respectively, depth of the site is 28.7m (north) and 29.205 (south) and area is 388.5m2. The site falls approximately two metres from front (Elizabeth Street) to rear. 4 Two terrace houses are erected on the site, the northern dwelling, No. 533 being two-storey and the southern dwelling, No. 535, a single storey building with attic. Both buildings are internally connected and have been approved for use as business premises by the council. 5 The main pedestrian access to the site is from Elizabeth Street, a major collector road. Little Buckingham Street provides vehicular access to a carparking area, which can currently accommodate four to five vehicles in a stacked arrangement. 6 Immediately to the north of the site is an eight-storey commercial building, built, according to evidence provided, in the 1960's and used as the Sydney Building Information Centre and recently upgraded for commercial and restaurant use. A two storey commercial building occupying the entire lot and fronting Belvoir Street adjoins the site to the south. The latter building is also identified as a contributory item within the CA. 7 In the vicinity of the site, along Elizabeth Street, are a range of buildings that vary in height from two to nine storeys and are used for residential, retail and commercial purposes. 8 Development on the western side of Little Buckingham Street is more regular and is primarily two-storey residential development erected to the street boundary. The Belvoir Street Baptist Church, a heritage item, is located opposite the site on the corner of Little Buckingham and Belvoir Streets. The proposal 9 The proposed development involves the demolition of the two terrace houses and the construction of a nine-storey building setback 6.555m from Elizabeth Street and erected to the side and over the rear boundary. The setback to Elizabeth Street is consistent with the building to the north. A glass, screening element erected approximately four metres from the front boundary is proposed within that area rising to the height of the second floor. A small portion of the building, being the angled sections of the rear façade, encroaches onto Little Buckingham Street for a distance of approximately 400mm. The council did not raise any issue in relation to this encroachment however, a condition requiring the deletion of the encroachments has been proposed in the draft conditions before the Court. It would appear that none of the existing buildings extend into Little Buckingham Street. The top floor is setback from the main front and rear façade a further distance of approximately 2m. 10 Two professional suites would front the courtyard area and are separated by the proposed main residential entrance and lobby area. Two, one-bedroom units are proposed at the rear of the ground floor level. 11 A basement carpark is proposed to occupy the entire site with access at the southern end of the site from Little Buckingham Street. Parking for nine cars and eight bicycles and garbage storage areas are provided at this level. A lift, centrally located within the building, provides access to all floors of the proposed building. 12 Eight floors of residential units are proposed above the mixed-use ground floor area. Levels 1- 5 are identical and each comprise four, one-bedroom units. Levels 6 and 7 would contain two, one-bedroom and one, two-bedroom units and the top level, level eight, a communal terrace area, a one bedroom and one, two-bedroom unit. A small terrace area is provided for each unit enclosed with weatherproof glass louvres. Two central voids running the entire height of the building allow for cross ventilation of the units. 13 The dwelling mix proposed comprises twenty-seven one-bedroom and three, two-bedroom units. The planning controls 14 The site is zoned 10-Mixed Uses pursuant to the provisions of South Sydney Local Environmental Plan 1998 (the LEP). Objectives of that zone are: - (a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and (b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and (c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and (d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and (e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and (f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.