Land and Environment Court New South Wales Medium Neutral Citation: Trevallyn-Jones v Council of the City of Sydney [2011] NSWLEC 1247 Hearing dates: 21-22 July 2011 Decision date: 03 August 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld in part; s 96 application for a roof top studio dismissed; s 96 application for retrospective works of a masonry wall allowed. Catchwords: Modification Application Legislation Cited: Environmental Planning & Assessment Act 1979 South Sydney Local Environmental Plan 1998 Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41 Super Studio v Waverley Council [2004] NSWLEC 91 Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75 Veloshin v Randwick Council [2007] NSWLEC 428 Paul Anthony Hayes v Leichhardt Municipal Council [2011] NSWLEC 1188 Category: Principal judgment Parties: Applicant: Meredith Trevallyn-Jones Respondent: Council of the City of Sydney Representation: Applicant: Mr Nash (Barrister) Applicant: Mr Grant Christmas Apex Planning & Environment Law Respondent: Mr A Hawkes File Number(s): 10419 of 2011 Judgment 1This is an appeal pursuant to s 97AA of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by the Council of the City of Sydney (the council) of a s 96 modification application to modify development consent D/2010/238 for 49 O'Connell Street Newtown, Lot 11 DP 1147686. 2On 31 May 2010, development consent was granted for the demolition of a cottage and construction of a two-storey infill terrace. The site is currently under construction. 3On 16 March 2011, the applicant lodged a s 96 modification for a roof top studio with front balcony and extension of internal stairs. The proposal also includes retrospective works of a 1.8m high masonry wall along the northern boundary. It is noted that there are no objections to the masonry wall. The site and its locality 4The site is rectangular in shape with a frontage of 5.605m and side boundaries of approximately 21m. The area is 117.5m 2 . The land is zoned Residential 2b (Medium Density) within the South Sydney Local Environmental Plan 1998 (SSLEP) and is within the O'Connell Town Estate Conservation Area (CA37). The site has a 'neutral' contribution to the conservation area however the dwellings to the north, south and west are 'contributing' buildings. 5The dwellings in the vicinity of the site are typically one and two storey semi-detached cottages and terraces. The site adjoins two double storey terraces to the south. Further to the south is Goddard Park and playground. To the north is a row of single storey dwellings. Opposite the site are one and two storey dwellings. Towards the rear of the site in Susan Street is a three storey red brick unit block amongst one and two storey cottages and terraces. 6Beyond the immediate vicinity of the site towards King Street, Missenden Road and Carillion Avenue, are other terraces, early twentieth century warehouses, apartments and commercial premises. The issues 7The council's contentions are summarised as follows: (1)The proposal is inconsistent with the zone objectives as it is out of character with the surrounding built environment. (2)The proposal does not comply with the height controls in the South Sydney Development Control Plan 1997 (SSDCP) and there are no exceptional circumstances to warrant any deviation from these controls. (3)The bulk and scale of the proposal are excessive and would have an undesirable visual impact on the streetscape. The FSR is excessive with respect to the FSR already approved. (4)The proposal does not comply with a range of controls relating to the built form and is therefore out of character with the streetscape in a heritage conservation area. (5)Because of the non-compliance with the controls, the public interest is not well served. The planning controls 8South Sydney Local Environmental Plan 1998 (SSLEP) currently applies. Clause 10 provides that consent must not be granted to a development unless the consent authority is of the opinion that the proposal is consistent with the zone objectives. Clause 22 - Heritage Aims, also applies. 9The key zone objective for Zone 2(b) Residential (Medium Density) pressed by council is: 12(1)(c) to ensure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment. 10The site is located within the O'Connell Town Estate Conservation Area (CA37) and the following heritage aims apply: 22(e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and 22(f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas, 11South Sydney Development Control Plan 1997 - Urban Design (SSDCP-UD) is relevant. Part E cl 2.1 - Building envelope - states in part: Where a site is seen as capable of taking an FSR above the limit, and still satisfy environmental and amenity considerations, the onus is on the applicant to demonstrate to Council, by way of a detailed assessment of the urban context, that the site is capable of taking such an increase. 12The relevant objective in cl 2.3 - Height and scale is to ensure that buildings are appropriate in scale, compatible and complimentary with areas of townscape significance, the site and its context. The performance criteria require that the height of new buildings adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours, takes into consideration the topography and shape of the site, and taller buildings are located on the higher part of the site. The height control for the site is specified as 6m in the Height Control Map. The height is the distance from the ceiling of the topmost habitable floor and the natural ground level immediately below that point but does not include an attic elsewhere defined. 13The height controls provide: Where the height specified in the Height Control Map is varied in exceptional circumstances for 'infill' linear development, building height does not exceed the 'building envelope' control line' determined by the width of the street specified by the formula for street height.... In special circumstances Council may support a part storey above the prescribed height limit provided the part storey is wholly within the 36 degree Attic height plane as defined. 14With respect to faade treatment, the objectives in cl 2.5 in part seek to ensure that building facades reinforce the character and continuity of the streetscape and that the faade, roof and materials of buildings contribute to harmonious and robust streetscapes. A relevant performance criterion is that the roof pitch and form matches adjoining buildings. However, elsewhere the clause states: Council encourages contemporary design solutions based on sound design principles which recognise and make reference to the underlying elements that create the character of the area. 15The City of Sydney Heritage Development Control Plan 2006 (COSDCP-H) applies. Objective 4.1(ii)(b) is to ensure that development within heritage conservation areas and heritage streetscapes enhances the character and heritage significance by "retaining and improving the contribution of neutral buildings to the area or streetscape". 16Provisions 4.2(1) require development within a heritage conservation area "to be compatible with the surrounding built form and pattern of development by responding sympathetically to": (a)existing form, massing, setbacks, scale and architectural style; (d) surrounding neighbourhood character and streetscape, including buildings; 17Section 7 of COSDCP-H considers 'infill development'. The objectives and provisions are similar to those in part 4. Relevantly the introduction states in part: New development in heritage conservation areas and heritage streetscapes should be designed to respect neighbouring buildings and the character of the area or streetscape. This character can be typified by a uniform development pattern or by a mix of architectural styles. Infill development should seek to create new structures that enhance and complement the existing urban character but should not necessarily be a copy of, or seek to replicate, neighbouring heritage buildings. 18Section 79C(1)(a)(ii) of the Act requires consideration of any proposed planning instrument that is or has been the subject of public consultation. In this regard, the Draft Sydney Local Environmental Plan 2011 (DSLEP-2011) must be considered. Under DSLEP-2011, the site is proposed to be zoned General Residential R1 and is within a heritage conservation area. The draft documents were placed on public exhibition on 2 February 2011 until 21 April 2011. The council is currently in the process of reviewing and considering the public submissions. The DSLEP-2011 proposes a height limit of 9m measured from ground level to the top of the roof. 19Also considered in the proceedings was Draft Sydney Development Control Plan 2010 (SSDCP-2010). The draft DCP proposes a one storey height maximum that is clearly inconsistent with the proposed height limits in the DSLEP - 2011. 20The proposal 21The approved dwelling is a two-storey terrace with a parapet roof, of Victorian style designed to blend in with existing terrace houses to the south. In approving the existing dwelling, council allowed a Floor Space Ratio (FSR) of 1.24:1 which exceeds the FSR control of 0.75:1. 22The proposal is for a roof top studio with doors opening onto a front balcony and windows on the northern elevation. The studio is to have a curved metal roof. In order to accommodate the internal stairs, the studio includes an extension of the building to the east. The plans show the studio to be set back 3.35m from the front boundary and 900mm from the northern boundary. The proposal will increase the FSR to 1.43:1 and the proposed height is 8.96m (under SSDCP). Evidence 23The hearing commenced with a view of the site and its surroundings. Height poles were erected on the top of the partially constructed roof of the approved dwelling to indicate the corners of the proposed studio. The site was viewed from O'Connell Street to the north and south, from Goddard Park, Chalder Street opposite the site, and from Susan Street to the rear of the site. As the applicant relies in part on a similar development at 45 Watkin Street Newtown, that dwelling and street were also inspected. 24The parties' planners were on site. Council's planner Ms M Andreou and the applicant's planner Ms D Laidlaw prepared a joint report. 25The rear of the site is visible from the public domain in Susan Street across the driveway of the residential flat building to the east. It would also be visible from the rear gardens and windows of nearby properties in Susan Street. The height poles could not be seen from Goddard Park but could be seen from various locations in Chalder Street and O'Connell Street however, depending on the viewing location, the view was more or less obscured by the foliage of street trees. 2645 Watkin Street is a two-storey terrace with an elevated ground floor over a part below ground component. There is a part third storey addition of very similar style to that proposed by the applicant on no 45 and on the dwelling to its north. Overall, the Watkin Street residence is taller than 49 O'Connell Street. The dwellings in Watkin Street are 2 storey terraces, many of which have additions, including dormer windows, on or within the roof above the second storey. Planning evidence 27The planners agree on the non-compliance with the height and FSR controls in SSDCP-UD and agree that under this DCP, the height limit of 6m equates to a two-storey development. However, Ms Laidlaw notes that the height controls in the SSDCP do not preclude attic additions or part storeys above the 6m limit and that the height of the proposal is within the calculated building envelope control line of 10.6m. 28In essence, Ms Laidlaw's position is that the street is eclectic in character with a variety of architectural styles, including roof forms, which could tolerate the incorporation of minor contemporary elements. She contends that both the SSDCP-UD and the COSDCP-H encourage well-designed contemporary development even within heritage conservation areas. In her opinion, the proposed studio is a well-designed, recessive and subordinate structure that does not detract from the main dwelling. She considers that the site will still be read as a two-storey dwelling, however she suggests that further setbacks, an increase in the height of the parapet walls and a modified pediment would further reduce the visibility of the studio. 29Ms Laidlaw considers that both the current and draft height controls enable a two-storey terrace with pitched roof above in which there could be an attic. In her opinion, the lack of any adverse impact of the 'part-storey' development on nearby properties could qualify as special circumstances and enable the use of the attic height plane in cl 2.3 of SSDCP-UD. She calculates that the majority of the proposed studio will fit within this plane. 30In support of a more flexible approach to the height controls, she also cites a letter from NSW Planning (the Department) to the City of Sydney Council in which the Department supports height controls for whole blocks rather than a lot-by-lot approach as suggested by council. One of the reasons given by the Department is that the council's approach " makes it more difficult for a land owner to make reasonable and modest changes to their home ". 31With respect to the built form of the addition she considers that the curved roof is a soft form that is complimentary to the adjoining building but clearly contemporary. She considers this a minor but desirable addition that will improve the liveability of a modestly proportioned house on a small block. 32Ms Andreou's opinion is that the proposal fails to satisfy the relevant objectives and performance criteria under cl 2.3, Part E of the SSDCP-UD, particularly as it does not adopt the height and scale of the adjoining buildings. In her view, there are no 'special circumstances' that warrant the application of the attic height plane. Similarly, while the current 6m height control allows a two-storey development with a pitched roof, the proposed studio reads as a third level addition one floor above the specified height level. 33Ms Andreou considers that the form of the addition is not characteristic of the built form of adjoining buildings. She states that there are no similar roof top additions to any other terraces within the street, and as such, the proposal does not comply with cl 4.2 of the COSDCP-H. Submissions 34Mr Nash for the applicant contends that whilst Development Control Plans must be a focal point of consideration ( Zhang v Canterbury City Council [2001] NSWCA 167 at [75] ), they are not necessarily the final point. In this regard, he argues that although the proposal breaches the 6m height control in SSDCP-UD, there are other controls upon which the applicant relies. He also accepts that the word 'exceptional' in cl 2.4 sets the bar at a high level, however the word 'special' is appropriate in the circumstances and the attic height plane should be applied. 35In pressing the need for flexibility in the application of the SSDCP, Mr Nash cites Talbot J in PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41 at [16] who considered the language and the content of the South Sydney DCP to be not prescriptive with the focus in terms of performance criteria allowing for flexibility. Further at [21] Talbot J states: 21 The Court accepts the more flexible approach adopted by the applicant, on the basis that the DCP acknowledges that "not all performance criteria will be applicable to every development" and that the controls may be varied if environmental and amenity issues are satisfactory. 36In support of his argument, Mr Nash presses the proposed 9m height control in the draft COSLEP 2011, the letter from NSW Planning (at [33]), and the absence of adverse impacts with regards to over-shadowing, privacy, view loss or traffic. He considers the visual impact to be minimal and that the development will be absorbed into the existing eclectic mix of architectural styles in the street. He asserts the studio will read as a contemporary design but it will not challenge the integrity of the streetscape. In essence, Mr Nash supports the opinion of Ms Laidlaw. 37He disputes the issue of precedent raised by council. Mr Nash cites Super Studio v Waverley Council [2004] NSWLEC 91 at [7] and the principle that any other similar application would have to be assessed on its merits. 38Mr Hawkes for the council contends that the appeal must fail on the facts of non-compliance with the height controls. Similarly, he submits, in accordance with cl 10 of SSLEP, that the Court must not grant approval to the development as it is inconsistent with zone objective 12(1)(c) as it is out of character with the surrounding built environment. Further, he contends that the proposal offends the heritage aims in clauses 22(e) and (f) for the same reason. 39In regards to retaining the character of heritage conservation areas, Mr Hawkes refers to cl 8.2.3 of the COSDCP-H regarding 'ensuring sympathetic roof alterations and additions. He contends that the proposed studio will adversely affect the silhouette of the roof. Subclause 8.2.3(5) states: (5) Roof additions are not supported on buildings with front or side parapets where the addition will adversely affect the silhouette of the parapet line. 40It is council's view that if approved, the development would create an undesirable precedent that would change the character of the area. In this Mr Hawkes cites Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75 at [28] and [29]. He contends that the proposal is " objectionable in itself " and "there is a sufficient probability that there will be further applications of a like kind " and thus " the fact that a consent would operate as a precedent may be taken into consideration ". 41With respect to the Draft COSLEP 2011 and draft DCP, Mr Hawkes considers that whilst the height control will most likely go from 6m to 9m, height is differently defined in the draft however the intent is to retain the two-storey limit. Not withstanding the inconsistency in the Draft DCP, the intent is to apply height limits to whole blocks as proposed by the Department in its letter to the council in order to retain the existing character of the area. However, in regard to these draft documents, Mr Hawkes presses the agreed views of the planners that neither document is 'imminent' nor 'certain' and therefore little weight should be given to them. 42With respect to the variation in the height controls in 'exceptional' or 'special' circumstances, Mr Hawkes argues that, notwithstanding the findings of Talbot J in PDP , the proposition that if a development will have little adverse impact on amenity, that is - the development complies in those respects, it can hardly be considered as exceptional or special. 43He also contends the argument that the approved development is a 'modest development' on a small site, which therefore somehow justifies the proposal, should be rejected. The approved dwelling comprises 3 bedrooms with separate dining/living areas and a formal lounge. This he says is more than a modest development. Findings 44It is common ground that the proposal does not comply with the 6m height control in cl 2.3 of the current SSDCP-UD. The difference between the parties is whether there are 'exceptional' or 'special' circumstances that would support a relaxation of the control by enabling the application of the attic height plane. The non-compliance with the height control also goes to issues of unacceptable bulk, scale and visual amenity. 45Consideration of the planning principle regarding the assessment of height and bulk outlined in Veloshin v Randwick Council [2007] NSWLEC 428 at [32] is appropriate in this matter. This states: 32 Because of the frequency with which height, bulk and character are matters in contention, it is useful to establish planning principles to guide how they may be assessed. Planning principle: assessment of height and bulk The appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.) How does the proposal's height and bulk relate to the height and bulk desired under the relevant controls? Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are: Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area? Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: Is the proposal consistent with the bulk and character intended by the planning controls? Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is: Does the proposal look appropriate in its context? Note: the above questions are not exhaustive; other questions may also be asked. 46With respect to question 1, the main impact is visual, issues of over-shadowing etc are not in contention, however the issue of noise and similar impacts associated with the use of the balcony adjoining the front of the studio were raised. 47The answer to question 2 is that the height control of 6m is breached by 2.96m but is within the building envelope control line. I accept that the proposal is a part storey but I am not satisfied that it wholly fits within the 36 degree attic height plane, particularly the extension required to accommodate the internal stairs. Exhibit E shows the attic height plane from two springing points. Using what I consider to be the more appropriate springing point of the top of the roof rather than the top of the parapet wall, it is clear that a reasonable portion of the studio does not fit within the attic height plane and most of the stairs are outside it. Even if it did fit within that limit, I am not convinced by the applicant's argument that the lack of adverse impact on over-shadowing, privacy, view loss and traffic should be considered as special circumstances. Therefore notwithstanding the findings of Talbot J in PDP concerning flexibility in DCP performance criteria, I am not satisfied that this proposal meets the 'special' circumstances envisaged by the SSDCP for infill development. The dwellings to the south are modestly higher as expected because of their topographical position upslope of the site. The level of the approved dwelling on the site conforms to this arrangement. The addition of a part third storey would disrupt the height relationships between the buildings and therefore not conform to the performance criteria in cl 2.3 Part E of the SSDCP that "taller buildings be on higher parts of the site". 48Question 3 is relevant; question 4 is not. Notwithstanding the possible permitted incorporation of contemporary elements, I consider the controls are aimed at retaining the existing character of the heritage conservation area. In regards to character, in my opinion, the immediate vicinity of the site is characterised by one and two storey detached and semi-detached cottages and terraces and is not as eclectic as Ms Laidlaw contends. There are no contemporary part-third storey additions nearby. I consider the character of Watkin Street to be very different to the character of the section of O'Connell Street in which the applicant's dwelling is situated. Watkin Street is a fairly uniform street of originally two storey terraces, many with sub-floor levels and a significant number with third storey additions in a variety of styles including dormers and structures similar to that proposed by the applicant. Therefore I am not satisfied that the precedent that may be construed by the Watkin Street example is relevant to the proposal for the site. 49With respect to the form of the studio, while I accept that it may be well designed, the shape of the roof is very different to the pitched and parapet roof forms of the adjoining and nearby properties within the visual catchment of the site. As such I consider it to be out of character with the prevailing roof forms of the heritage conservation area. The answer to question 3 is that the proposal does not fit into the existing character of the immediate area and therefore does not comply with zone objective 12(1)(c) of the SSLEP or the heritage aims in 22(e) and (f) of SSLEP. This also goes to question 5. 50In consideration of the precedent it may set, while I accept Mr Nash's position that any subsequent development application must be assessed on its merits, I am persuaded by Mr Hawkes' reference to Goldin. As Hussey C found in Paul Anthony Hayes v Leichhardt Municipal Council [2011] NSWLEC 1188 at [48], I consider that there is a strong possibility that other neighbouring terrace owners would make similar applications based on the precedent that approval of this development would set. While I agree with Ms Laidlaw that most people don't study the skyline when they are walking the streets of Newtown, it becomes relevant when someone is specifically looking for a development that may provide the precedent they seek. In this regard, this is no different to the applicant's use of the addition to 43 Watkin Street as an example of an approved structure similar to that proposed by the applicant. 51With respect to the Draft COSLEP 2011, I accept the height controls seem likely to change to 9m but will be differently defined. However, in the opinions of the planners, the draft LEP is neither imminent nor certain and therefore little weight can be afforded to it. Conclusions 52On the facts, the proposed studio does not comply with the height controls in the SSDCP and I am not satisfied that there are any special or exceptional circumstances that warrant the application of the attic height plane and any resulting relaxation of the control. The height and form of the proposed studio are inconsistent with the character of the area. As the site is located within a heritage conservation area, the consistency between the proposed development and the existing character should be at a higher level. I consider the visual catchment of the site to be not as eclectic as Ms Laidlaw contends but dominated by traditional style dwellings. The design of the approved dwelling appears to be a very deliberate attempt to maintain the architectural style of its surroundings. 53Overall I am not of the opinion that the proposed studio is consistent with the zone objectives as I am not satisfied it is in character with the surrounding built environment. Similarly, in regard to the heritage objectives in the SSLEP, I am not satisfied that the development is sympathetic to the heritage conservation area in which it is located. 54In this instance there is competition between the private interest of the applicant in gaining more space and the public interest of retaining the existing character of the area through the reasonable application of the planning controls. The planning controls have been formulated after extensive consultation and there is a reasonable expectation of compliance with them. The absence of environmental impacts in itself does not justify a development that breaches those controls. 55In regards to the FSR, the council has already granted a concession by approving a substantial, but not unreasonable, increase in FSR by the approval of the development now sought to be modified. The applicant has not demonstrated any compelling change of circumstances to support an additional increase in the FSR. A small block in a heritage conservation area will inevitably have limitations in terms of the extent to which it can be developed. In the circumstances, I consider that the proposal is not in the public interest. 56On the basis of the forgoing, the s 96 modification for a roof top studio with front balcony and extension of internal stairs must be refused however, as there is no objection to the 1.8m high masonry wall along the northern boundary that element of the proposal is approved. 57Therefore the Orders of the Court are: (1) Appeal 10419 of 2011 is upheld in part. (2) Section 96 modification application to modify development consent D/2010/238 for a roof top studio with front balcony and extension of internal stairs at 49 O'Connell Street Newtown, Lot 11 DP 1147686 is refused. (3) Section 96 modification application for retrospective approval of works of a 1.8m high masonry wall along the northern boundary is approved. (4) All exhibits except D, 2 and 4 are returned. ______________________________ J Fakes 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. Decision last updated: 24 August 2011