Land and Environment Court of New South Wales CITATION : Pomering v Council of the City of Sydney [2008] NSWLEC 1454 APPLICANT Ron Pomering PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10117 of 2008 CORAM: Tuor C Development Application :- demolition of an existing building and construction of five apartments KEY ISSUES: impact on heritage streetscape and conservation area internal amenity of apartments, size, open space, solar access and car parking. Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 10 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997 Development Control Plan No 11 – Transport Guidelines for Development 1996 State Environmental Planning Policy No 65 Central Sydney Development Control Plan 1996 DATES OF HEARING: 28/08/2008 and 12/09/2008 DATE OF JUDGMENT: 7 November 2008 APPLICANT Mr G. Green, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S. Kondilios, solicitor of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 7 November 2008 10117 of 2008 Ron Pomering v Council of the City of Sydney JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of a development application (D2007/2246) under the Environmental Planning and Assessment Act 1979 by the Council of the City of Sydney (the council) for the demolition of an existing building and construction of five apartments at 65 Albion Street, Sydney (the site). 2 The issues identified by the council relate to the impact on the character and streetscape of the area and the unacceptable amenity impacts for future occupiers of the apartments. The site 3 The site is rectangular with a 24.35 m frontage to Belmore Street and a 5.485 m frontage to both Albion Street and Albion Way giving a total site area of 133.75 sq m. 4 The site is occupied by a dilapidated terrace building that has been partially demolished. The last approved used was for a boarding house. The area has a mix of land uses including residential, the former Children's Court, a church and some commercial uses. Albion Way performs the role of a rear lane and is characterised by car accesses and garages. Background 5 The site has approval to upgrade and expand the existing boarding house to provide 12 rooms (DU/1999/599A). The approval includes demolition and has been substantially commenced. 6 The development application for "five new single bedroom attached dwellings" was lodged on 16 November 2007. The application was notified and six objections were received. On 18 January 2008 the Department of Planning granted concurrence to the application under State Environmental Planning Policy No 10. The applicant lodged a class 1 appeal against council's deemed refusal on 8 February 2008. Council refused the application under delegated authority on 3 March 2008. 7 A conciliation conference under s34 of Land and Environment Court Act 1979 was held on 28 April 2008. No agreement was reached and the conference was terminated. Following the s34 conference the applicant was granted leave to rely on amended plans, which were renotified and two objections received. The principal concerns of the objectors to the original and amended application are that the proposal is out of character with the streetscape and the conservation area and as it does not provide parking the proposal will increase the demand for on street parking. 8 The application was further amended during the hearing to increase the extent of masonry in the façade. Proposal 9 The proposal is to demolish the existing derelict building and construct a two-storey building that provides for five residential apartments, each with ground floor kitchen/living area, one bedroom on the second level and roof top private open space. Access between each level is via an internal spiral staircase. The proposed building is to the constructed to all four property boundaries and is to be built predominantly of glass blocks, terra cotta and steel. No on site parking is to be provided. 10 A unique component of the proposed development is the "green wall". This consists of vertical garden systems on each frontage of the proposed development that extends the full height of the proposed building. When designed with appropriate plant species, irrigation and nutrition, a green wall will provide a long-term effective means of softening the visual bulk of a building. A green wall also contributes to air quality, reducing surrounding heat and reducing stormwater run-off by harvesting and utilising rainwater. 11 Council initially raised concerns about the on going maintenance and viability of the "green wall". The applicant provided further information including a "Green Wall Feasibility Report" and agreed to a condition, which required the maintenance of the green wall to be the responsibility of the owner or, if strata subdivided, the owners corporation. This largely addressed council's concerns. The planning controls 12 The site is within Zone No. 10 – Mixed Uses under South Sydney Local Environmental Plan 1998 (the LEP). The proposal is permissible with consent within this zone. Clause 6 provides general aims of the LEP, cl 7 provides the principal objectives and cl 21 provides the zone objectives. 13 Part 4 of the LEP contains special provisions. Division 1, cll 22-27 provides requirements that relate to Heritage Conservation; the site being located within the Foveaux Street Conservation Area and part of the Albion Street Heritage Streetscape (HS 1) and within the vicinity of a number of heritage items including the William Booth Institute (56-58 Albion Street), the Former Children's Court (66-78 Albion Street) and St Francis de Sales Group (80-96) Albion Street. 14 South Sydney Development Control Plan 1997 (the DCP) applies. Part E provides requirements relating to Environmental Design and specifically site planning, building form and appearance, amenity, energy efficiency and operational controls. Part F contains Design Criteria for specific types of development such as residential dwellings, residential flat buildings, industrial development, mixed-use development and shopping streets. 15 Development Control Plan No 11 – Transport Guidelines for Development 1996 (DCP No 11) is also relevant in relation to the provision of car parking for the development. The evidence 16 Town planning evidence was provided by Mr Lindsay Fletcher for the applicant and Mr David Hannam for the council. Heritage evidence was provided by Mr Robert Staas for the applicant and Mr Anthony Smith for the council. Mr P Lonergan, the project architect provided a design statement and evidence on compliance with the Building Code of Australia (BCA) in relation to the spiral staircase and ventilation. Character and streetscape 17 Mr Staas and Mr Smith agreed on the significance of the Albion Street Heritage Streetscape and the Foveaux Street Conservation Area and the site's relationship with the heritage items on the opposite side of Albion Street. They raised no objection to the demolition of the existing building due to its dilapidation and agreed that the overall height, bulk and form of the proposal were acceptable. The key disagreement between the experts related to the proposed materials, particularly the extent of masonry as the character of the surrounding area is predominantly masonry. 18 Mr Smith stated that the planning controls did not oppose contemporary buildings or materials and he raised no objection to the "green wall" or to the arrangement of masonry to fenestration. He, however considered the ratio of masonry to glass brick/glass should be greater. 19 Changes to the proposal were made prior to the hearing to increase the extent of masonry. Mr Smith considered that these changes were an improvement but did not go far enough. During the hearing on 28 August 2008, Mr Staas suggested further changes to increase the extent of masonry, including the introduction of a masonry parapet. Mr Smith indicated that he supported these changes. The applicant further amended the plans to reflect the agreement between Mr Staas and Mr Smith. No further evidence from Mr Staas or Mr Smith was sought on the amended plans at the hearing on 12 September 2008. 20 Mr Kondilios, for the council, submitted that the plans did not sufficiently address the concerns of council and that the application should be refused. Conversely, Mr Green, for the applicant submitted that the amended plans reflected the agreement between Mr Smith and Mr Staas and achieved an acceptable impact on the streetscape and the conservation area. 21 The other concern of Mr Smith related to the changes to the subdivision pattern. Mr Hannam shared this concern. Both experts considered that the existing allotment was consistent with the subdivision pattern in the area for terrace houses. Originally the terrace building on the site terminated a row of two storey terraces which front Albion Street with a blank façade running along the Belmore Street frontage. The proposed development provides five residential apartments on the site thereby increasing the "density" of development. The apartments face Albion Street, Belmore Street and Albion Lane and therefore change the subdivision pattern of the area. 22 Mr Hannam states that the properties in the vicinity of the site generally have a consistent form, allotment size, shape and orientation. The footprint for separate habitation is well below the minimum 230 sqm in the DCP for single dwellings. Even though Torrens title subdivision of the site into separate allotments is not proposed, Mr Hannam considered that five separate apartments is an over intensification of the land and disrupts the rhythm and continuity of the current subdivision pattern. He considered that the site should accommodate a terrace type development with one dwelling fronting Albion Street and, at most, a second dwelling fronting Albion Lane. 23 Both Mr Staas and Mr Fletcher considered the rhythm and form of the proposal fronting Belmore Street was similar to a terrace form with five metre frontages and this was not uncharacteristic of the area. They noted that the current approval for the site permits a 12 room boarding house which largely occupies the site and has a greater density than the proposal. 24 Mr Staas stated that the site is a corner site and he provided other examples of corner sites in the area that he considered the development responded to. Both he and Mr Smith agreed that it was appropriate that the proposal address and accentuate the corner. Amenity 25 The key disagreement between Mr Hannam and Mr Fletcher related to the amenity of the apartments. Mr Hannam was particularly concerned about the size of the apartments, the amount of solar access, the provision of car parking and the location of the open space. Size of the apartments 26 The experts agreed that the planning controls that apply to the site do not specify a minimum size of apartment. However, they considered that the Residential Flat Design Code (the Code) under State Environmental Planning Policy No 65 (SEPP 65) and the Central Sydney Development Control Plan 1996 (DCP 1996) provided an appropriate guide. 27 Mr Fletcher and Mr Hannam also disagreed on whether the apartments were one bedroom or studio apartments and consequently the appropriate area requirements. Mr Fletcher considered the apartments were more akin to studios as the bedroom and living areas, although on different levels, were not functionally separate as it is necessary to walk through the bedroom to access the bathroom and the open space. Mr Hannam considered the apartments to be 1 bedroom as the bedroom is on a separate level to the living area. 28 Mr Fletcher noted that the Code includes studio apartments with an internal area of 38.5 sqm and DCP 1996 specifies a minimum size of 40sqm for studios. The proposed apartments have an internal area of 41.8 sqm and an external roof deck private open space with an area of about 20 sqm. Mr Fletcher stated that: By comparison with other small apartments and other forms of affordable housing, the actual room sizes are in my opinion quite reasonable whilst the private open space area is relatively generous. 29 Mr Hannam considered the proposal to be well below the internal sizes for 1 bedroom apartments recommended in the Code of between 50-63 sqm and the DCP 1996 minimum of 55 sqm. In his opinion the size of the apartments would result in unacceptable amenity for future occupants. Open Space 30 The contention raised by council refers to the performance criteria in Part E Section 1.4 of the DCP. Mr Hannam also referred to the requirements of Part F Section 1.1.2 which requires ground level private open space for dwellings and townhouses. 31 Mr Hannam was also concerned about the ability of the roof top open space to facilitate entertainment and the supervision of children due to its separation from internal areas, particularly living areas. 32 Mr Fletcher considered the proposed roof top open space satisfied the criteria in Part E. He noted that these criteria do not specify the provision of open space at ground level or a direct relationship with living areas. Although he agreed that this was a desirable objective, particularly for entertaining and supervision of children. However, he considered that the apartments, due to their size, are not conducive to entertaining and would not appeal to households with children. 33 Mr Fletcher did not agree that Part F Section 1.1.2 applied to the development as it relates to dwelling houses and townhouses. 34 In Mr Fletcher's opinion the roof top open space will provide a high level of amenity due to its size, solar access, privacy and security. Solar access 35 Mr Fletcher and Mr Hannam agreed that the apartments fronting Belmore Street (facing east) would not achieve solar access for at least 2 hours, between 9am and 3pm in the winter solstice. This does not comply with Part E, Section 5.1 of the DCP. Both experts agreed it is desirable to achieve good solar access where possible. Mr Hannam considered that non compliance with this control to be unacceptable as it reduced the amenity for future occupants and resulted from an over development of the site. 36 Mr Fletcher considered that the non compliance, in this instance, with the DCP control is not sufficient reason to warrant refusal of the application. He stated that the four apartments facing Belmore Street would receive solar access until shortly after 10am and that the apartment facing Albion Street and the open space areas for all the apartments would easily meet the control. 37 In Mr Fletcher's opinion it is difficult in highly urbanised areas for all dwellings to achieve solar access. He considered that all the apartments in the proposal would receive some solar access and that the extent of solar access to the outdoor open space offset the non compliance with the DCP requirement for the internal areas. Spiral Staircase and ventilation 38 Mr Hannam initially raised concerns about the practicality of the proposed spiral staircase and its compliance with the requirements of the BCA and the ability to provide furniture. He also raised concerns about the ventilation of the apartments due to the limited area of openable windows. Both he and Mr Fletcher agreed that these issues were beyond their area expertise but accepted the evidence provided by Mr Lonergan that the spiral staircase could comply with the BCA and that the apartments would be adequately ventilated. Mr Lonergan stated that the metal panels on the first floor are openable to enable access for furniture and the amended plans provide the location for air conditioning units on the roof, if required by owners. Car parking 39 DCP 11 requires a maximum provision of 0.5 car parking spaces for each 1 bedroom apartment/bedsit which would require 3 spaces for the five proposed apartments. Mr Hannam considered that parking should be provided as the proposal is for redevelopment of the site and it is inevitable that some of the occupants will own a car and this will add to the demand for on street spaces in the locality. 40 Mr Fletcher stated that DCP 11 is a maximum requirement and that it can be reduced. Mr Fletcher noted that the current approval for a boarding house would also require 3 car spaces and that no spaces were provided. In his opinion the proposal would not increase the demand for parking. He considered that the development would appeal to people who do not own a car, particularly as the site has excellent public transport. A condition would be imposed that restricts future residents from participating in the on street resident parking scheme. Findings 41 I accept Mr Fletcher's evidence that the apartments are studio apartments as the bedroom is not a private separate room but must be entered to use the bathroom and the out door area. Although the living, bedroom and open space uses are on separate levels they function together. 42 The apartments are small, even for studio apartments, but they are consistent with the size requirements of DCP 1996. The room layouts provided by Mr Lonergan demonstrate that they are of sufficient size and appropriate design to provide accommodation that would meet the needs of a certain section of the community. Clearly the apartments would not appeal to people with expectations or requirements for larger areas. The evidence of Mr Lonergan and Mr Fletcher highlighted their own different accommodation needs. 43 Although Mr Hannam considered the proposal to be 5 X 1 bedroom apartments, he stated that the controls in Part F relating to single dwelling houses should apply to the proposal. Mr Fletcher considered the controls in Part F relating to Residential Flat buildings were more applicable. The proposal does not fit neatly into either section, as while the proposal has the nature of a residential flat building each apartment it is not three storeys and has a separate entrance. 44 The key difference in the controls in these sections of the DCP relate to the provision of outdoor space at ground level. In determining the appropriateness of the open space it is important to consider how it meets the objectives of the controls and the performance criteria in Part E, in particular whether the open space is usable and provides good amenity. 45 The experts agreed that the open space is large and will enjoy good solar access and privacy. Mr Hannam's principal criticism related to the location of the open space separate from the living areas and not at ground level. While I acknowledge that it is an optimal arrangement to provide open space that is directly accessible from a living area I do not consider that ground level open space on this site would provide amenity benefits above those provided by its location on the roof, and also considering the size of the site and its urban context. 46 A large area of open space that receives sunlight and is secure and private is an asset in such an inner city location and provides amenity benefits, which compensate for its separation from living areas. Open space at ground level could only be provided if a terrace type development were proposed on the site with one or two dwellings (as suggested by Mr Hannam). 47 Given the boarding house approval, it is unlikely that a terrace type development would occur on the site. The planning controls do not dictate a terrace form of development in the mixed use zone. On the contrary the zone encourages a wide range of uses, which will result in varied building forms. 48 The boarding house approval does not provide outdoor open space or landscaping. Mr Staas and Mr Smith agreed that none of the buildings in the block containing the site had usable open space at ground level although a number have parking areas at the rear. 49 There appears to be little advantage in placing the open space at ground level where solar access would be difficult to achieve and it would be affected by traffic noise and lack of privacy and the provision of car parking. 50 The experts agreed that the solar access to the apartments that front Belmore Street do not comply with the numerical requirements of Part E Section 5.1 of the DCP. I accept that this is a negative feature of the development but acknowledge that the east facing orientation of these apartments places constraints on the provision of solar access. However, they will receive sun until about 10.15am and the open space receives excellent solar access. On balance the provision of solar access is reasonable and of itself this does not warrant refusal of the application. 51 The provision of no car parking also does not warrant refusal of the application given that it does not increase the demand for parking beyond that generated by the existing approved boarding house and the requirements of DCP 11 are a maximum that can be reduced. The site is in close proximity to excellent public transport and the imposition of a condition which restricts access to the on street resident parking scheme will further limit the desirability of the apartments to people with the cars. 52 The principal consideration is whether the proposal has an adverse impact on the heritage significance of the Albion Street Heritage Streetscape, the Foveaux Street Conservation Area and the heritage items on the opposite side of Albion Street. 53 The proposal is a contemporary building but the fundamental components of height, bulk and form reflect other buildings in the area and comply with the height and floor space requirements of the DCP. It will be clearly different to other buildings but the proposal is simple and will not compete for attention with the heritage buildings in the vicinity. The building makes reference to the terrace buildings in the area with a similar rhythm and frontage width. It responds to its corner location and is not dissimilar to other corner buildings, which terminate rows of terrace. 54 The proposal will notionally alter the subdivision pattern by placing more dwellings on a single terrace house allotment. However, the form of development appears consistent with the subdivision pattern of the area. 55 The proposal will be different but it will not be a landmark building that stands out for attention. Rather because of its simple form and repetitive detail it is well mannered. The "green wall" is an interesting concept with environmental benefits, which will soften the appearance of the building. However, the building does not depend upon the "green wall", the amended scheme with the terracotta panels and glass blocks are acceptable within the context without the benefits of the "green wall". 56 I am satisfied that the building provides a contemporary interpretation of the character of the streetscape and conservation area with sufficient reference to existing buildings to be compatible and not impact on the heritage significance of the streetscape and conservation area or the items in the vicinity. 57 In reaching the conclusion, I am mindful that the acceptability of this solution relies heavily on the quality of the architecture and its detailing. The proposal is well resolved and, while the apartments are minimal in size, they are well considered and designed to provide and acceptable level of amenity. A building of similar bulk and density, which did not express the same degree of sensitivity, would not be acceptable on this site or within the heritage streetscape and conservation area. Conditions 58 The only condition in dispute related to whether the a covenant should be placed on the title which restricts any change of use from housing. 59 Mr Kondilios submits that the condition seeks to prevent the apartment being use as serviced apartments or other short term accommodation and that a covenant will alert potential purchasers of this limitation. 60 The applicant has agreed to the other parts of Condition 4, which limit the use of the apartments to permanent residential accommodation. I therefore accept Mr Green's submission that the imposition of a condition is not required. The approval is for a residential building and therefore purchasers will be aware of its approved use and condition 4(a) limits the use to permanent residential accommodation. Condition 4(b) places a limitation on any change of use which is more appropriately dealt with by any future application. The covenant is therefore not required and I have deleted condition 4(b). Orders 61 The orders of the Court are: 1. The appeal is upheld 2. The development application (D2007/2246) for the demolition of an existing building and construction of five apartments at 65 Albion Street, Sydney is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A and L, are returned. ___________________ 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. 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