Land and Environment Court of New South Wales CITATION : Gray v Council of the City of Sydney [2009] NSWLEC 1122 APPLICANT Colin and Lissa Gray PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 11281 of 2008 CORAM: Tuor C KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to existing dwelling, construct new dwelling and subdivision. Impact on conservation area and residential amenity. Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 LEGISLATION CITED: City of Sydney Heritage Development Control Plan 2006 South Sydney Development Control Plan 1997: Urban Design Gray v Council of City of Sydney [2008] NSWLEC 1303 Segal & Anor v Waverley Council [2005] NSWCA 310 DATES OF HEARING: 24-26/03/2009 DATE OF JUDGMENT: 24 April 2009 APPLICANT Mr G Green, solicitor LEGAL REPRESENTATIVES: of Pikes Lawyers Mr S Kondilios, solicitor of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 24 April 2009 11281 of 2008 Colin and Lissa Gray v Council of the City of Sydney JUDGMENT 1 Commissioner Tuor: This is an appeal against the refusal by the City of Sydney Council (the council) of a development application (D/2008/1505) under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to convert two terrace dwellings at 245 and 247 Riley Street, Surry Hills (the site) into a single dwelling, to demolish two garages and construct a new four storey dwelling fronting Little Riley Street with a pool and Torrens title subdivision of the site into two lots. 2 The key issues between the parties are whether Little Riley Street is a lane and whether the height and scale of the new dwelling on Little Riley Street has an adverse impact on the conservation area and provides an appropriate termination to Goodchap Street. Council also raised concerns about the separation distance between the dwellings, which it contends results in inadequate private open space, privacy, and bulk impacts. Site and its locality 3 The site has frontages to both Riley Street and Little Riley Street and an area of 232.7sqm. The site falls about 1.5m from Riley Street to Little Riley Street at the rear. Little Riley Street, between Campbell and Reservoir Streets is approximately 3.8m wide with no footpath. 4 The site has two two storey Georgian style Victorian terraces fronting Riley Street, two shed structures and two single storey garages fronting Little Riley Street. A large Brush Box tree is in roughly the centre of the site. 5 The surrounding area has a mixture of building forms and uses. Development along Riley Street includes two storey Victorian terraces and a three storey hotel to the north. A single storey cottage, used as a café (the front building at 249 Riley Street) adjoins the site to the south, which adjoins commercial buildings that range in height between two and five storeys. 6 Adjoining the site to the north on Little Riley Street is a two storey warehouse building (12-14 Little Riley Street) next to two Victorian terraces. Development to the south is a four storey building (the rear building at 249 Little Riley Street) which adjoins industrial buildings of three to four storeys. The opposite side of Little Riley Street is predominantly two storey residential buildings with an electricity substation on the corner of Little Riley Street and Goodchap Street (32 Goodchap Street). 7 The site is at the end of Goodchap Street, which has predominantly two storey residential development, with some recent infill development. Planning controls 8 The site is in Zone 10 – Mixed Uses under South Sydney Local Environmental Plan 1998 (LEP 1998) and the proposed development is permissible with development consent. The site is also in the Reservoir Street and Fosterville Heritage Conservation Area (conservation area) under LEP 1998. 9 The substation at 32 Goodchap Street and the terraces at 17-21 Goodchap Street are identified as heritage items under LEP 1998. 10 The City of Sydney Heritage Development Control Plan 2006 (Heritage DCP) and the South Sydney Development Control Plan 1997: Urban Design (DCP 1997) are also relevant. 11 The parties disagreed on whether Part G Section 2 of DCP 1997 - Residential Development on Rear Lanes applied to the development. This disagreement centred on whether Little Riley Street is a rear lane, which is discussed later in this judgment. 12 If Part G Section 2 of DCP 1997 applies the proposal would exceed the maximum height of 5.4m, maximum length of 7m and the minimum separation between dwellings of 12m specified in this part of DCP 1997. 13 Part E of DCP 1997 provides that the floor space ratio (FSR) and height not exceed that identified on the FSR map and height map of the DCP which provide a maximum FSR of 2:1 and a maximum height of 12m for this site. The Little Riley Street dwelling proposes a FSR of 1.65:1 and a height of 11.5m. Section 2.1 of Part E states that: The FSR and Height Maps identify the potential maximum limits of development. However, maximum limits may not be achievable in all instances…. 14 Part F Section 1.1.2 of DCP 1997 requires that there be 45sqm of ground level private open space for a dwelling, although for townhouse development a minimum area of 35sqm is to be provided as a courtyard. Section 1.4 of Part E also provides objectives and performance criteria for private open space for developments. I note that Part G Section 2.3 includes controls for private open space where rear lane development results in two single dwellings on the site. This requires at least 45sqm of ground level open space for the main dwelling and at least 20sqm for the rear lane dwelling. The parties did not refer to the latter control. 15 The Heritage DCP includes provisions relating to Heritage conservation areas and heritage streetscapes (Part 3), Infill development (Part 7) and Development on Lanes (Part 10). The parties agree that parts 3 and 7 apply to the proposal. Mr Green, for the applicant, submitted that his primary position is that Part 10 does not apply, and even if it does the proposal meets its objectives and provisions. 16 The Heritage DCP (s1.14) refers to a Heritage Inventory Assessment Report (HIA report) as a relevant consideration in the assessment of development applications. 17 The HIA Report for the conservation area includes the following Statement of Significance: The area dates from one of the key period of layers for the development of Surry Hills as a direct result of the subdivision of the Riley Estate. It is dominated by the Crown Street Reservoir and contains good examples of mid to late Victorian terraces and Federation Commercial buildings which make a positive contribution to the streetscape. 18 The Heritage DCP (s1.15) also refers to Building Contributions Maps (contributions map) which identify buildings and sites within a conservation area as either contributory, neutral or detracting. A draft contributions map has been prepared for the conservation area but it has not been exhibited or adopted by council and is not publicly available. It therefore should be given no weight. However, the heritage experts, Mr R Staas, for the applicant, and Ms M Desgrand, for the council, have generally agreed on the contributory, neutral and detracting buildings within the vicinity of the site. Background 19 The site was the subject of a previous appeal (Appeal No 11270 of 2007) before Commissioner Bly. As I understand it the previous appeal involved a development, which was essentially the same as the current proposal except it provided two car spaces for the rear dwelling and none for the dwelling fronting Riley Street. In his decision (Gray v Council of City of Sydney [2008] NSWLEC 1303) Commissioner Bly refused the application because of the absence of off street parking for the Riley Street dwelling. He found the development to be otherwise satisfactory. 20 The parties disagreed on the extent to which I should take into account the previous decision of Commissioner Bly. Mr Green, submitted that the findings of Commissioner Bly and the previous application were relevant matters to be considered. Further, he submitted that I should reach the same conclusion as Commissioner Bly for those aspects of the proposal, such as the height and scale of the Little Riley Street dwelling, which remain the same as the previous application and which Commissioner Bly had found to be acceptable. 21 Whereas Mr Kondilios, for the council, held the opposite opinion that the application must be considered on its own merits and that the decision of Commissioner Bly was largely irrelevant to my consideration of the application. 22 Both parties agreed that I was not bound by the decision of Commissioner Bly and that I must bring an independent mind to my consideration of the application. Mr Green referred to the decision in Segal & Anor v Waverley Council [2005] NSWCA 310 where the Court of Appeal held: 4) Commissioner Watts was neither bound to follow the decision of Commissioner Moore nor to take it into consideration if he considered it irrelevant to the resolution of the principal contested heritage issue which he was required to consider ([58]-[60], [96]). NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 referred to. (5) Although it may have been desirable for Commissioner Watts to have referred to the earlier decision of Commissioner Moore, given the somewhat unique circumstances under which the two decision were made, his failure to do so did not constitute an error of law. The primary judge was in error in holding to the contrary ([55]-[56], [63], [97]). (6) Although raised before Commissioner Watts, the principle of consistency in administrative decision-making was not a principal contested issue in the relevant sense ([90], [97]). (7) Furthermore, the so-called principle of consistency in administrative decision-making has no application to adversarial proceedings where the merits of any particular application depend upon the circumstances of the case and the issues joined between the parties. The concept is more appropriately applied to true administrative decision-making at the level of executive or local government ([51], [93]). (8) In the context of environmental planning, consistency in the application of planning principles is clearly desirable but it does not follow that a consistent application of those principles will result in the same outcome in each particular case ([94]). 23 I am not bound to follow the decision of Commissioner Bly nor am I obliged to refer to that decision in order to then distinguish it on its facts or to otherwise opine that it was wrong. I am obliged to clearly explain the reasons for my decision based on the evidence before me. However, I note that the decision in Segal also stated that it is desirable to consider previous decision where relevant. In providing reasons for my decision I consider the judgment of Commissioner Bly to be relevant as a public interest consideration in my assessment of the application under s79C. 24 Mr Green also submitted that I should give weight to the consent for 249 Riley Street in 1999 to add two additional storeys to the existing two storey building and the consent for 12-14 Little Riley Street in 2001 for an additional storey setback from the street (not constructed and the consent has lapsed). The planning reports for both these developments did not refer to Part G Section 2 of DCP 1997 as the applicable control or at all. I have given these approvals little weight other than the physical form of 249 Riley Street that exists today as a result of the 1999 consent. Evidence 25 The Court visited the site and heard evidence from adjoining and nearby residents and from the applicant. The principle concern of the objectors was the height and bulk of the proposed dwelling on Little Riley Street which the residents considered to be excessive and would adversely impact on the streetscape of both Little Riley and Goodchap Streets and have adverse environmental impacts such as impeding breezes and solar access and resultant glare. The residents were also concerned about the loss of the view to the Brush Box tree which they considered to be a positive feature of the area. 26 The adjoining owner to the south, Mr Grimme, was concerned about the impact of the proposal on his windows on the boundary and overlooking of his property from the proposed deck. 27 The applicant explained her reasons for wishing to develop the site and her understanding of the judgment of Commissioner Bly. 28 In addition to the heritage evidence of Ms M Desgrand and Mr R Staas, the Court heard town planning evidence from Mr A Sutherland, for the council and Mr A Betros, for the applicant. The applicant's architect, Mr P Lonergan, provided a design statement but was not required for cross examination. Ms S Knight, for the council and Mr A Morton, for the applicant provided arborial evidence which addressed the impact of the proposal on the Brush Box tree. Subject to appropriate conditions they agreed that the impact was acceptable. Council did not press this issue. Impact on the conservation area 29 The experts held different opinions on whether Little Riley Street is a lane and therefore whether Part G Section 2 of DCP 1997 and Part 10 of the Heritage DCP apply to the proposed dwelling. 30 The experts agreed that there is no definition of a laneway in the planning controls and that laneways are sometimes called streets. In Mr Staas's opinion, Little Riley Street is not a lane because buildings address it as their principle frontage. He recognised characteristics of lanes include narrow width, servicing and access but considered the main determinant to be that a lane does not have buildings which only address it. He stated that the historical development of Little Riley Street and the site was that of a secondary street with houses and industrial buildings with frontages to only Little Riley Street. 31 Ms Desgrand considered that there are various factors which define a laneway, principally the role in the hierarchy of streets as determined by its width and the scale of development that fronts it. She considered that development along a laneway, whether or not a rear or service lane, is of a subsidiary scale to the development along the principal street. In her opinion the width of Little Riley Street and the history and scale of residential development along the street define it as a lane. She noted that the previous houses on the site were small timber dwellings that were subsidiary in scale to the dwellings that front Riley Street. She referred to examples where the frontages of laneways are lined with houses. 32 Mr Sutherland held a similar opinion to Ms Desgrand. Mr Betros considerd that laneways were generally at the rear of a property and served an access/service function to the principal dwelling on the main street frontage. He considered that Part G Section 2 of DCP 1997 referred to such lanes and the height limit of 5.4m reflected the height of development along rear/service lane. 33 Mr Staas and Mr Betros considered the main factor to consider in determining the appropriate height of development on the site is the height of the two adjoining buildings (12-14 Little Riley Street and 249 Riley Street). They considered the proposed dwelling achieved an appropriate transition between these two buildings. They also considered that the location of the site at the end of Goodchap Street provided more space than the width along the rest of the lane and that the proposal provided an appropriate termination to Goodchap Street. Its height and scale therefore met the requirements for infill buildings in the Heritage DCP. 34 Ms Desgrand and Mr Sutherland agreed that the context of the area would permit a higher building than anticipated under Part G Section 2 of DCP 1997. However, Ms Desgrand stated that the objectives in Part 4.4 of the Heritage DCP seek to maintain the positive contribution of contributory buildings and that development should be consistent with the policy guidelines in the HIA Report which include the requirement that new development respect the scale and form of contributory development. She considered that the proposal should respond to the height of contributory buildings in the visual catchment of the site that includes Goodchap Street. All the contributory building are two storeys in height. She did not consider that the height of the proposal should respond to the neutral, or in her opinion detracting building at 249 Little Riley Street. She prepared a photomontage (exhibit 9) to demonstrate the height of a proposal, which she considered would respond to the contributory buildings in the visual catchment of the site. Findings 35 I accept Ms Desgrand's opinion that a lane is characterised by a number of factors that include its width and the subsidiary nature of development. The Macquarie Dictionary defines a lane as being a narrow way or passage between fences, walls or houses. The principal street address of buildings of itself would not define a road of 3.8m in width as a street. Width is a key characteristic in defining a lane principally as width is an critical factor in determining the appropriate height and scale of development. A narrow width of 3.8m would not normally achieve appropriate scale and amenity if lined by development that is 12m in height. This is demonstrated by the later industrial buildings to the south east of the site which are of three to four storeys along the street frontage and create a canyon effect, although this is alleviated to some extent by the lower height of buildings on the west side of the lane. 36 The intent of Part G Section 2 of DCP 1997 and Part 10 of the Heritage DCP is to limit the height and scale of development along laneways to achieve an appropriate relationship with the width of the lane and existing development. In a typical rear lane the scale of development is generally garages and small structures, which the controls in Part G Section 2 reflect. The growth and development of Little Riley Street is not that of a typical rear lane and the scale of development is mixed and varied along the lane. Ms Desgrand and Mr Sutherland have agreed that variation to the controls in Part G is appropriate due to the scale of development along the lane. I accept this position, but I do not accept the position of Mr Betros that the 12m height and the FSR of 2:1 in DCP 1997 are the relevant controls for the site. 37 Commissioner Bly on the evidence before him reached a different conclusion. He stated that: …I do not agree that Little Riley Street should be treated as a rear lane despite its narrow width. This is because it has not been specifically identified as such nor does it have the characteristics of a lane, taking into account that buildings in the street address it as their principal frontage. 38 Further Commissioner Bly gave weight to the proposal's compliance with the height and FSR controls in DCP 1997 in determining whether it achieved appropriate height and scale within the streetscape. 39 The experts appear to agree that the key controls for new development within a heritage conservation area are in Part 4- Heritage conservation areas and heritage streetscapes and Part 7- Infill development of the Heritage DCP. The objectives of Part 4 are: ……to ensure that development within heritage conservation areas and heritage streetscapes: (i) takes into consideration the contribution of the building as indicated by the Building Contributions Map; (ii) enhances the character and heritage significance of the heritage conservation area or heritage streetscape by: (a) maintaining the positive contribution of contributory buildings to the area or streetscape; (b) retaining and improving the contribution of neutral buildings to the area or streetscape; and (c) improving the contribution of detracting buildings to the area or streetscape. (iii) is consistent with policy guidelines contained in the Heritage Inventory Assessment Report. 40 As stated above, a Buildings Contributions Map has not been adopted for the conservation area. However, I accept the identification of Mr Staas and Ms Desgrand as to the contributory buildings in the vicinity of the site (exhibit 11). I also accept that to maintain the heritage significance of the conservation area new development should respond to the contributory buildings within the area, particularly those that are within the visual catchment of the site. 41 The objectives in Part 7 are : …to ensure that infill development in heritage conservation areas and heritage streetscapes is designed to: (i) respond positively to the character of adjoining and nearby buildings, and (ii) demonstrate sympathetic bulk, mass and scale, and (iii) achieve appropriate orientation, setbacks, materials and details 42 The key disagreement between the experts was which buildings the development should respond to and be sympathetic with. Mr Staas and Mr Betros considered the adjoining buildings to be of principal importance and that the proposal formed an appropriate transition between these two buildings and therefore was appropriate within that context. 43 Ms Desgrand and Mr Sutherland considered the proposal should respond to the contributory buildings within the visual catchment. I accept this position, which is reinforced by the Management Guidelines in the HIA Report for the Conservation Area which recommends that redevelopment of non contributory sites respect the scale and form of contributory development. The question then becomes one of whether the proposed dwelling achieves this objective. The infill controls do not require that new development copy or replicate but rather that it enhance and compliment existing urban character. I therefore accept Mr Stass's opinion that the height of the proposal does not need to be the same as contributory buildings but that it should be compatible. I note that Commissioner Bly also recognised the contribution of contributory items to the character of the conservation area and that new development was not required to mimic these buildings. 44 Mr Staas and Ms Desgrand agreed that most of the existing buildings to the north of the site in Little Riley Street and along Goodchap Street are contributory. There are a few recent infill buildings in Goodchap Street that are neutral. The buildings to the south of the site along the west side of Little Riley Street are also contributory. The height of these contributory and neutral buildings is predominantly two storeys. 45 The buildings to the south of the site along the east side of Little Riley Street are neutral being the later industrial buildings which are three to four storeys in height. Ms Desgrand considered 249 and 255 Riley Street to be detracting buildings that should not be used as a benchmark for the height of the proposed dwelling. 46 The height of the proposed dwelling will largely not be viewed from within the lane due to narrow width of the lane, particularly the fourth level, which is setback 2.5m from the street wall. The height of the street wall is higher than the adjoining contributory buildings to the north but achieves a degree of compatibility. It is lower than the neutral/detracting building to the south and within the context of Little Riley Street is also compatible. 47 The site terminates Goodchap Street and within this context the street wall is higher in height than the contributory terraces. The fourth level, although setback from the street wall, would be visible and would add to the height. The degree to which the fourth level can be seen would increase along Goodchap Street away from the site. This is illustrated when the photomontage (exhibit B) is compared to the photomontage in the finishes board (exhibit C). The visibility of the fourth level increases considerably in the latter photomontage. Close to the site the fourth level would not be visible at all. 48 Goodchap Street is the main context within which the proposal will be viewed and within this context I find that the overall height and scale of the proposed dwelling is not compatible with the contributory terrace buildings in Goodchap Street which is the primary visual catchment. The proposal therefore does not satisfy the requirements for infill development and conservation areas in the Heritage DCP and pursuant to cl 22 of LEP 1998 consent must not be granted. 49 My conclusion is different to that of Commissioner Bly who placed greater weight on the compatibility of the proposal with its adjoining neighbours than the two storey contributory buildings. He states at para 23: Even though the proposed building does not have the same scale or character as the two-storey contributory buildings, I do not accept that it would have an adverse impact on them especially as they are seldom seen in the same context. Conversely I agree with Mr Staas that its scale and massing in terms of height and setbacks are appropriately transitional in relation to its more important immediate neighbours, including the four- storey neutral building to the south. In this regard I accept that the very strong character of these buildings dominate the relevant visual context at the corner of Little Riley and Goodchap Streets where the site is situated. 50 Although from the preceding paragraph it appears that Commissioner Bly is referring to the two storey contributory buildings to the north of the site for the reasons given above I consider that the two storey contributory buildings in Goodchap Street are the primary context within which the proposal will be viewed. The evidence before me is that the proposal, including the fourth level, will be seen in this context and it does not have a compatible scale or character with these buildings. While the immediate neighbours dominate the corner of Little Riley and Goodchap Streets, I do not accept that this is the relevant visual context. Even if were, the proposal would add to the domination of these buildings. 51 From the evidence before him, Commissioner Bly concluded at para 24 that: Again I agree that the relationship between the proposed building and its neighbours to the north and south is important and do not accept that the removal of the fourth level would make any appreciable difference in terms of the building's relationship with the terraces in Goodchap Street 52 I have reached a different conclusion based on the evidence before me. The photomontages (exhibit 9 and exhibit B) indicate that a lower height will make an appreciable difference in terms of the buildings relationship with the terraces in Goodchap Street. I do not accept that a reduction in height to the extent illustrated in Exhibit 9 is necessary to achieve compatibility with the contributory terraces. Nor do I accept the opinion of Mr Staas that a higher height is needed to form an appropriate termination to Goodchap Street. 53 A reduction in the overall height of the building by removal of the fourth level including the parapet to the deck (RL 49.48) would achieve a greater degree of compatibility. This would also enable more of the brushbox tree to be seen from Goodchap Street. While this is not a heritage issue, the residents' considered the tree to be a significant part of the character of the area, which provides amenity. Again I note that based on the evidence before him, Commissioner Bly reached the conclusion that very little of the tree would be seen even with the removal of the fourth level. 54 With the removal of the fourth level and the parapet the proposal would satisfy the requirements of the Heritage DCP and cl 22 of LEP 1998. I consider this amendment could be imposed as a deferred commencement condition that requires the height of the proposed dwelling not to exceed RL 49.7, which is slightly higher than the FFL of the third level (RL49.48) but allows a slight parapet or increased slab depth and is consistent with the height of the adjoining building at 12-14 Little Riley Street. 55 The removal of the fourth level will still enable a dwelling house to be constructed on the site, although some internal configuration may be required to optimise the use of space. Ms Desgrand's suggestion of combining the stairs and the light well would still provide north facing light to the dwelling but increase the usable floor area. The removal of the fourth level will also require some redesign of the façade of the proposed dwelling. I note Ms Desagrand's concerns about the façade design but consider the proposal is clearly a contemporary building which makes little reference to the varied buildings within its context. The reduction in depth of the parapet and a reconsideration of the depth of the carpark overhang would reduce the horizontal emphasis of these elements. While it is important to achieve a development of appropriate scale and bulk the façade design is best left to the skill of the architect. Internal amenity 56 The Riley Street dwelling and the Little Riley Street dwelling have a separation distance of about 9.4m-10.5m. Mr Sutherland considered this insufficient to provide adequate private open space for each of the dwellings. The private open space proposed for the Riley Street dwelling is 37.7sqm and 36.7sqm for the Little Riley Street dwelling which in Mr Sutherland's opinion do not meet the 45sqm requirement in Part F 1.1.2 of DCP 1997. He stated that a dwelling on Little Riley Street which complied with the 7m length requirement in Part G 2.1 of DCP 1997 would achieve larger areas of private open space and achieve the minimum separation of 12 m specified in Part G 2.6 of DCP 1997. In Mr Sutherland's opinion greater separation would also reduce impacts of acoustic and visual privacy and bulk resulting from the dwelling at Little Riley Street. 57 Mr Betros stated that: …the proposed layout (of the private) open space substantially improves the connectivity with living areas whilst also increasing solar access to these areas. The shape of the areas are also more practical for usage while the size is considered commensurate with the size of the dwellings. 58 Further, Mr Betros considered that the size of the courtyards is consistent with the area required for townhouse in DCP 1997 and they meet the objectives for private open space in DCP 1997. He stated that if the front setback area of the Riley Street dwelling and the deck off the fourth level of the Little Riley Street dwelling were included, the proposal would generally comply with the 45sqm control. 59 Mr Betros considered the privacy impacts to be acceptable as the living areas at ground level are divided by the fence and the upper levels are screened by louvers. In his opinion, the bulk of the Little Riley Street dwelling is acceptable as it complies with the height and FSR control in DCP 1997 and is only one storey higher than the Riley Street dwelling. The retention of the brush box tree also assists in limiting bulk and privacy impacts, but is not relied upon. Mr Betros stated that increased separation between the dwellings would require a reduction in the floor plate of the Little Riley Street dwelling and reduce solar access while providing little amenity benefits. Findings 60 I am not convinced that a 12m separation would provide a material benefit to the aural or visual privacy between the dwellings. I agree with Mr Betros that the separation distance between the dwellings is reasonable and achieves the objective of Part G 2.6: To ensure adequate acoustic and visual privacy is provided between dwellings. 61 The size, shape and location of the courtyards adjoining the living areas of the dwellings provide usable areas of private open space which is characteristic of the area and meets the objectives of Part F 1.1.2: To ensure that private open space for dwellings is usable and meets user requirements for privacy, access, outdoor activities and landscaping. 62 The removal of the fourth level will reduce the bulk of the Little Riley Street dwelling. It will appear as a two storey dwelling when viewed from the courtyards and would be of a similar bulk to the Riley Street dwelling and is acceptable. 63 Further, an increase in the setback would reduce solar access to the Little Riley Street dwelling. On balance, I find that an increase in the separation distance to 12m would provide little benefit to the two dwelling or to the wider area. I note that my findings are consistent with those of Commissioner Bly. Other Issues 64 The owner of 249 Riley Street raised concerns about the impact of the Little Riley Street dwelling on his boundary window and overlooking from the deck into his court yard. Council did not raise these concerns as an issue. The approval of the extensions to the existing building in 1999 included the windows on the boundary but the planning report recognised that the building would still achieve compliance with the requirements of the Building Code of Australia (BCA) for light and ventilation if the site were developed. The proposal will impact on the amenity to these rooms but it is not unreasonable to expect that windows on a boundary would be impacted upon by development of the site given that development built to the boundary is characteristic of the area. In relation to overlooking of the courtyard, this appears to be a small service area for the café and I accept the planners' evidence that the privacy impact is acceptable. 65 The contention in relation to size of the lots in the proposed subdivision of the site was not pressed by Council except in relation to the other contention of the form of Little Riley Street dwelling and the amenity impacts. The planners agreed that the proposed subdivision layout allows for better solar access to the open space than the current subdivision and is acceptable if the other matters are resolved. I accept this conclusion. 66 Although not raised by the parties, the Brush Box tree will provide significant amenity benefits for the area and will assist in screening the dwellings and mitigating privacy impacts. However, the canopy of the tree occupies the entire open space areas and there may be inherent conflicts between the use of these spaces and the tree, particularly the on going maintenance of the pool. The future maintenance as a result of the tree is addressed in the Joint Report of the arborists who recognise that there may be pressure from a future owner to apply to prune of remove the tree under the Tree Preservation Order to reduce maintenance and increase solar access. The development is approved on the basis of it being feasible for the tree to be retained both in terms of construction impacts from the proposal and its compatibility with the private open space. I therefore consider it appropriate to include a condition of consent that requires the on going retention of the tree. Conditions 16(d), 19 and 20(b) refer to an Arborist Report by Earthscape Horticultural Services dated February 2008. It is unclear whether this is the report in exhibit 3, which is dated February 2009 or another report not before the Court. To avoid confusion the methodology statement referred to should be annexed to the conditions. Conclusion 67 For the reasons in this judgment, I have concluded that the proposal in its current form would have an adverse impact on the conservation area. However, a development that deleted the fourth floor with an overall height not exceeding RL 49.7 would be acceptable. As this option has not been discussed with the applicant, I will defer my final orders and allow the parties to prepare amended conditions, which include a deferred commencement condition to be filed by 30 April 2009. The amended conditions should also address the matters in relation to the brush box tree in para 66. ___________________ Annelise Tuor Commissioner of the Court 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.