Land and Environment Court New South Wales Medium Neutral Citation: Bettar v Council of the City of Sydney [2012] NSWLEC 1304 Hearing dates: 24-25 September 2012 Decision date: 02 November 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. D/2012/462 for a four storey mixed use development at 43-45 Riley Street Woolloomooloo is approved, subject to the conditions in Annexure A. 3. The exhibits, other than exhibit 1, are returned. Catchwords: DEVELOPMENT APPLICATION: mixed use development, within the vicinity of heritage items, heritage conservation area, weight to be given to draft LEP. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Mr Paul Bettar (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Ms Sandra Duggan SC (Applicant) Ms Fenja Berglund (Barrister) (Respondent) Solicitors Conomos Legal (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10436 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/12/462 (the proposal) by the Council of the City of Sydney (the Council) to construct a five storey residential flat building with retail on the ground floor fronting Riley Street, at 43-45 Riley Street, Woolloomooloo (the site). Issues 2Following amendments made to the proposal prior to the commencement of the hearing, the remaining issues between the parties can be summarised as: * Level 4: * Whether the 5th storey of the proposal (Level 4) has an adverse impact on the streetscape and the adjoining heritage item; whether it will set a precedent for height on the allotments to the south of the site and the extent of its impact on views from the Paramount Apartments; * Building separation: * Whether Apartment 2.02 of the proposal should have fixed or movable screens along the western boundary to provide privacy between the proposed apartment and the Park Lane Towers apartment on the opposite side of Busby Lane; * Internal amenity: * Whether the layout of the proposed apartments will allow for sufficient natural ventilation and whether the proposed media rooms will be used as a second bedroom. 3A (without prejudice) condition of consent for a restrictive covenant to be registered on the title of the Level 4 units is disputed by the applicant. The condition requires the north and south boundary windows to be sealed and bricked up or otherwise enclosed prior to the construction of any building abutting, adjoining or adjacent to such windows. The Council seeks to impose the condition as a mechanism to notify prospective owners of the Level 4 apartments of the possibility that the windows in the northern and southern elevations will be removed if an adjoining property is developed and the applicant says that such a restrictive covenant is not necessary. The site and its context 4The site is on the western side of Riley Street, to the north of William Street. The site has rear lane access to Busby Lane and is situated in the block bounded by Riley Street to the east and Busby Lane to the north and west and McCarthy Place to the south. 5The block on which the site is situated is surrounded to the east, west and south by residential flat buildings. Park Lane Towers, to the west of the site and across Busby Lane has two levels of parking and six levels of residential apartments, fronting the laneway. The Paramount Apartments, to the south of McCarthy Place, has a ground floor and basement podium with 12 levels of residential apartments over. Background and the proposal 6The proposal is to demolish the existing single storey garage and construct a five storey residential flat building, consisting of a retail tenancy and residential entry fronting Riley Street and a garage accessed from the laneway on the ground floor and four levels of residential apartments over. A basement level is proposed below the ground level, to be used for parking via a car stacker and storage. 7There are 8 residential apartments proposed, two on each level (Levels 1-4), each with a frontage to either the western or eastern elevation. Level 3 is setback from Busby Lane and Level 4 is setback from both Riley Street and Busby Lane. The lift core, stair and lobby are located on the southern side in the centre of the site, between the two apartments on each residential level. Planning Framework 8The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65). The Residential Flat Design Code (RFDC) supports the ten design quality principles identified in SEPP 65 and supplies detailed information about how development proposal can achieve these principles. The RFDC applies to residential flat development, as defined by SEPP 65. 9Recommendations of the RFDC relevant to the proposal are: * Part 1 Local Context - Building Separation; * Part 3 Building Design, Building Configuration - Balconies and apartment layout; * Part 3 Building Design, Building Amenity - Natural Ventilation. 10The RFDC recommends that for buildings over three storeys, building separation increase in proportion to building height and suggested dimensions between adjoining sites for developments up to four storeys (12 m high) is 12 m between habitable rooms/balconies. 11The RFDC includes, as a rule of thumb, under 'apartment layout', that single aspect apartments should be limited in depth to 8 m from a window. 12The RFDC states the following in relation to natural ventilation: Natural ventilation is the circulation of sufficient volumes of fresh air through an apartment to create a comfortable indoor environment. 13 The RFDC objectives for natural ventilation include the following: To ensure that apartments are designed to provide all habitable rooms with direct access to fresh air 14The RFDC 'Better Design Practice' for natural ventilation includes a statement that design solutions may include consideration of alternative solutions for cross ventilating single aspect apartments. The final dot point states the following: Explore innovative technologies to naturally ventilate internal building areas or rooms - such as bathrooms, laundries and underground carparks - using stack effect ventilation or solar chimneys, for example. 15The RFDC 'rules of thumb' for natural ventilation includes the following: Living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours direct sunlight between 9 am and 3 pm in mid winder. In denser urban areas a minimum of two hours may be acceptable. Sixty percent (60%) of residential units should be naturally cross ventilated. 16The site is within Zone 10 Mixed Uses, under the provisions of South Sydney Local Environment Plan 1998 (LEP 1998). Clause 10 of LEP 1998 provides that consent must not be granted unless the consent authority is of the opinion that the proposed development is consistent with the objectives of the zone. 17The relevant objective for the Mixed Uses Zone, at clause 21 of LEP 1998, is: (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans 18The site is within the vicinity of the following heritage items, listed in Schedule 2 of LEP 1998: * 41 Riley Street, Brandt Bros Ltd, two storey Federation commercial building c 1903 item no. 980 (Brandt Bros building) * 55-61 Riley Street, Lessey's Garage, single storey Inter-War Art Deco style commercial building item no. 982 (Lessey's Garage) * 46-48 Riley Street, City Ford Building six storey Inter-War Functionalist style commercial building c 1938 item no. 981 19The site is located within the Woolloomooloo Conservation Area (CA52), Schedule 2A, LEP 1998. The Woolloomooloo Conservation Area is bounded to the west by Busby Lane, to the rear of the site. 20Clause 22 of LEP 1998, Heritage Aims, includes the following aim: (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, or heritage conservation areas and their setting, and if streetscapes within heritage streetscape areas and their setting 21The site is within the B4 Mixed Use Zone under the provisions of the draft LEP. The draft LEP includes the following savings provision: 1.8A Savings provision relating to development applications. If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. 22The proposal is subject to the provisions of South Sydney Development Control Plan 1997: Urban Design (DCP 1997). Part A of DCP 1997 includes, at 4. How to use this plan, the following statement: The emphasis of the Plan is on the assessment of applications on merit to achieve the best possible balance between the diverse and sometimes conflicting issues that affect development sites. 23Section 2, Part B of DCP 1997 includes the following statement: Setting Protect and enhance significant topographical elements, existing skylines and areas of high visibility that highlight the City's distinctive form. 24Section 2, Part E of DCP 1997, at clause 2.1 Building envelope, includes: Of primary significance in the successful integration of new development within existing precincts is the appropriateness of the scale of new building to its immediate context. This 'appropriateness', of scale does not necessarily mean an exact match of neighbouring building height (though this is extremely important in largely homogeneous areas) but rather a compatibility of overall size, form and massing as well as façade design and detailing. The FSR and Height Maps identify the potential maximum limits of development. However, maximum limits may not be achievable in all instances. Environmental conditions set out in performance criteria will determine these. Where a site is seen as cable of taking an FSR or height 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 increase. 25The performance criteria for floor space ratio (FSR) at clause 2.2, Part E, DCP 1997 are: The maximum FSR a site can achieve is determined by the environmental constraints of the site, in particular: * Overshadowing and privacy * streetscape * parking and landscape requirements * visual impact and views * capacity of the community infrastructure and the road network to support the development. 26The FSR controls, also at clause 2.2, Part E, DCP 1997 include the following statement: However, in instances where it can be justified on environmental and amenity grounds and Council considers it suitable to exceed the maximum FSR provisions contained in Section 3.2 Elements of the Urban Framework: Built Form, that any floor space proposed above the maximum identified on the FSR map will be calculated as bonus floor space in all cases and will require public domain improvements above those generated by the floor space bonus indicated on the FSR map. 27The height and scale performance criteria, at clause 2.3, Part E, DCP 1997 includes the following: 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 building are located on the higher parts of the site. 28Section 4 Amenity, Part E, DCP 1997 includes at clause 4.1 Visual and Acoustic Privacy: The direct overlooking of adjacent private open space and living rooms from immediately abutting new development should be minimised. Dwelling layout, screening devices, distance, offsetting windows and landscaping are some of the techniques used to divert or screen direct views. 29The visual and acoustic privacy performance criteria, also at clause 4.1, includes the following: Visual privacy The main habitable areas and private open space are designed to be protected from direct overlooking, by building layout, location and design of windows and balconies, screening devices, distance or landscaping. 30The visual and acoustic privacy section at clause 4.1 includes a number of diagrams depicting in plan how privacy is a key consideration of the site planning and layout stage and how to locate windows to limit overlooking. A section is included with a 12 m dimension indicated between buildings and the words, 'desirable separation'. 31The proposal is subject to the provisions of the City of Sydney Heritage Development Control Plan 2006 (DCP 2006). DCP 2006 includes, at clause 2.2 the following: (1) Alterations and additions to buildings and structures, and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the: (a) building envelope; (b) proportions; (c) materials, colours and finishes; and (d) building and street alignment. 32Clause 4.2 of DCP 2006 includes the following provisions for heritage conservation areas and streetscapes: (1) Development within a heritage conservation area or heritage streetscape is 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. 33Clause 7.2 of DCP 2006 includes the following provisions for infill development: (1) Infill development is to be designed and detailed to complement the character of buildings within the vicinity of the site, particularly in terms of height, massing, form, bulk, setbacks and scale. (2) Infill development is to be compatible with the proportions of neighbouring buildings, including in terms of bulk and scale, and detailing. (c) The materials and finishes of infill development are to be compatible with the materials and finishes of adjoining significant or contributory buildings. Public submissions 34Five residents from the Park Lane Towers provided evidence and the Court, in the company of the parties and their experts, visited two apartments in Park Lane Towers. The residents' objections to the proposal can be summarised as: * The block, which includes the site, consists of development ranging between 1 and 4 storeys and the low-rise nature of this block benefits the high-rise residential development around it, by allowing the surrounding residential apartments on the higher levels to look across the block and beyond it; * Concern regarding the Department of Planning and Infrastructure letter (Exhibit 9) stating that the development controls for the site under the draft LEP are to be a height of 18 m and floor space ratio (FSR) of 3:1 as this would result in a much larger development on this site when compared to the existing buildings on the block and it may create a precedent for the allotments to the south of the site; * The proposal will compromise the visual and acoustic privacy of the Park Lane Towers apartments directly opposite the site, across Busby Lane; * The car stacker will create traffic congestion in Busby Lane, which is one-way; * The proposal is an overdevelopment of the site; and * The proposal will have an unacceptable impact on the heritage significance of the adjoining heritage item. Expert evidence 35Expert evidence was provided on behalf of the applicant by Ms Gabrielle Morrish (urban design), Mr Anthony Betros (planning) and Mr Stephen Davies (heritage). 36Expert evidence was provided on behalf of the Council by Mr Andrea Urzi (urban design), Mr Jai Reid (planning) and Mr John Poulton (heritage). Level 4 Height and FSR 37The experts agree that under the provisions of DCP 1997, the development controls for the site are a height of 9 m and FSR of 2:1. The experts agree that the proposal has a height of 14.6 m on Riley Street and 15.6 m on Busby Lane and a FSR of 3.53:1. 38The urban design and heritage experts for both parties agree that the Riley Street frontage height of four storeys is acceptable and appropriate and that their disagreement regarding the height of the building relates only to the fifth floor (Level 4) of the proposal. 39The experts agree that a part of Level 4 will be visible from the footpath on the opposite side of Riley Street from William Street to Kennedy Street. Ms Morrish says that Level 4 will not be visible when viewed in front of the building from Riley Street and from Busby Lane and where Level 4 is visible; it is seen against a backdrop of buildings significantly greater in size, which makes the height of the proposal acceptable. The applicant submits that should the adjoining allotment to the south be developed to a height of 12 m, it would screen views of the proposed Level 4. 40According to Ms Morrish, the Woolloomooloo area is characterised by varied streetscapes and a wide range of building heights. Heritage 41The heritage experts agree that the four storey street wall height of the proposal relates appropriately to the adjoining heritage item and their disagreement is confined to whether Level 4 of the proposal impacts on the adjoining heritage item, the Brandt Bros building. 42According to Mr Poulton, Level 4 will have an adverse impact on the adjoining heritage item, the Brandt Bros building, as Level 4 is higher than the parapet of the heritage item. 43According to Ms Morrish and Mr Davies, Level 4 of the proposal is not read in the same plane as the Brandt Bros building, due to the setback of level 4 from Riley Street. 44Mr Poulton says that the two heritage items, the Bandt Bros building and Lessey's Garage form 'bookends' at either end of the block and any development of the allotments between the heritage items should respond appropriately to these two buildings. According to Mr Urzi and Mr Poulton, Level 4 of the proposal will set an undesirable precedent for five floors on the adjoining allotment to the south, which would potentially have a detrimental impact on the heritage item at the southern end of the block, Lassey's Garage. 45Mr Davies agrees that the two heritage items form bookends at either end of the block and in his opinion, the proposal does respond appropriately to the form of the block. According to Mr Davies, Lessey's Garage will always have a different scale to its neighbours and this will have to be taken into account when an application is lodged for the allotments to the south of the site. Draft LEP 46The experts agree that under the provisions of the exhibited draft LEP, the development standards for the site are a height of 18 m and a FSR of 3:1. 47They agree that following the exhibition of the draft LEP and the receipt of submissions, Council amended the draft LEP so that the development standards for the site and the remainder of the block on which it is situated, were a height of 12 m and FSR of 2:1 and that the draft LEP was not re-notified following these amendments. Mr Urzi says that the intention of Council's amendments to the exhibited draft LEP was to maintain the scale of the block as determined by the Brandt Bros building. 48Council received a letter from NSW Planning and Infrastructure dated 3 September 2012 (Exhibit 9) stating the following in relation to the site: Floor space ratio map 015 and Height of building map 015 - amend to apply a floor space ratio control of 3:1 and a height limit of 18 metres to the land at 43 Riley Street, Woolloomooloo. 49The parties agree that the reference to 43 Riley Street in Exhibit 9 is a reference to the site, 43-45 Riley Street, Woolloomooloo and that the changes to the draft LEP, required by NSW Planning and Infrastructure, apply only to the site and not to the rest of the block. 50The experts agree that the proposal would result in a FSR of 2.83:1 when calculated in accordance with the definition of floor space in the draft LEP. 51Ms Duggan submits that the draft LEP is certain and imminent, as Exhibit 9 demonstrates that the development standards for the site are certain and that under the provision of s 79C(a) of the EPA Act, I am only to take into account the exhibited version of the draft LEP. As a consequence of the certainty of the draft LEP, the draft LEP is entitled to significant weight in the determination. 52Ms Berglund agrees that that draft LEP must be taken into account. She submits that Council was not required to re-exhibit the amendments to the exhibited plan and that while the draft LEP has a high degree of certainty, it is not absolutely certain. Ms Berglund submits that in accordance with the principles in Zhang v Canterbury City Council (2001) 115 LGERA 373, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process and the Court is to entitled to give significant weight in the decisionmaking process to the development controls under the provisions of DCP 2006. View loss from Paramount apartments 53The urban design and planning experts agree that Exhibit C (photographs taken from the Paramount Apartments and marked to show the impact of Level 4 of the proposal on the existing view) accurately demonstrates the impact of Level 4 on the existing views from the north facing apartments on the lower levels (third and fourth floors) of the Paramount Apartments. Mr Reid cannot recall which floor he was on when he took the photographs, however he thinks it was the third and fourth floors of the Paramount Apartments. 54The urban design and planning experts disagree on the significance of the view loss from the Paramount apartments. According to the applicant's experts, the view loss is minor from some apartments, as Level 4 will sit within existing views of vegetation within the Domain. According to the Council's experts, the views to be obscured by the proposal are iconic, as they include the Art Gallery and Domain. Building separation 55The urban design and planning experts agree that the separation between the Park Lane Towers apartment on the second residential floor adjacent to Busby Lane and apartment 2.02, adjacent to Busby Lane on Level 2 of the proposal is 8-10 m (Figure 23, Exhibit 5). They agree that a 12 m separation is desirable and that as the 12 m separation has not been achieved by the proposal, other means are required to provide visual and acoustic privacy between the two apartments on either side of Busby Lane. 56The Council's experts press for the 12 m separation to be achieved and say if it is, the operable screens would be necessary, because there is still a visual privacy issue at 12 m separation. 57The applicant's experts say that an additional 2 m separation will not make any difference to the visual privacy of the Park Lane Tower apartment and that the 12 m separation noted in the DCP (page 86) is desirable only. They say that the proposal has offset the windows and balconies and is also offset in elevation, such that the floor levels of the proposal do not align with the floor levels of the Park Lane Towers apartments and that these measures, along with the movable screens, will provide sufficient visual privacy in this urban context. 58According to the Council's experts, the screens proposed on the external windows of apartment 2.02 should be fixed, as the separation is less than 12 m and according to the applicant's experts, the two screens should be operable. 59According to the applicant's experts, fixing the screens will compromise the amenity of apartment 2.02. They say that the primary aspect of the Park Lane Towers apartment is towards the north and the room within the apartment that is impacted by the proposal is a bedroom, used as a study and not a living room. Internal amenity 60Ms Morrish says that the proposal achieves cross ventilation within each apartment because it circulates air by drawing it through a vertical duct at the back of each apartment and that this proposal constitutes an 'innovative technology' as envisaged by the RFDC 'Better Design Practice' for natural ventilation. Mr Reid said he is not aware of how this system works. 61Mr Reid says that the depth of all the apartments exceeds the RFDC 'rule of thumb' for single aspect apartments to be limited in depth to 8 m. Mr Betros says that the apartments have a generous façade width with good access to ventilation and only the bathrooms and laundries are beyond the 8 m depth from the façade. 62According to Council's experts, the configuration of the media room within each apartment as a 'room' 2950 mm deep with a large opening to the central hallway makes it possible that the rooms will be used as a bedroom, which would be inappropriate as they are internal rooms with no windows. 63In reply, the applicant's experts say that the media rooms are open and are to be used as a study and they agree with Council's experts that the media room is unsuitable for use as a bedroom. Findings Level 4 64Pursuant to s 79C(1)(a) of the Environmental Planning and Assessment Act 1979, the following must be considered in terms of the draft LEP: (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) 65The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted. Relevantly, Spigelman CJ states, at par 5 of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, the following: Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 66The draft LEP was exhibited 2 February to 2 April 2012 (Exhibit 4 par 2.9). 67I accept Ms Berglund's submission that the draft LEP has a high level of certainty, on the basis that the Council has referred it to the Department of Planning and Infrastructure. The question of its imminence is less important, in this case. As the draft LEP has a high level of certainty, I have taken the fact that the proposal would comply with the height and FSR development standards of the draft LEP into consideration. 68I accept the agreement of the experts that the Riley Street frontage height of four storeys (Ground - Level 3) is appropriate and that Level 4 of the proposal will be visible on the opposite side of Riley Street, from William Street to Kennedy Street. 69In my opinion, Level 4 will be a conspicuous addition to the top of the building, rising over and concealing the gable roof of the adjoining heritage item, the Brandt Bros building when viewed from William Street and along Riley Street. The form of Level 4 is not compatible with the roof form and decorative Dutch gable of the Brandt Bros building. I agree with Mr Poulton that Level 4 of the proposal will have an adverse impact on the heritage significance of the Brandt Bros building, because it will interfere with the contribution the existing masonry façade and the form of the heritage item makes to the physical definition of the street wall and public spaces. 70I accept that precedent can be a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, any future development applications for the adjoining sites to the south should be considered on their own merits and in relation to the unique context of each site. Accordingly, I have given no weight in my decision to the precedent the proposal may set for the adjoining sites and the impact of five storeys on the heritage item at the southern end of the site, Lassey's Garage. 71I agree with the applicant's experts that the view loss, as a result of the proposed Level 4, from the affected Paramount Apartments is minor and consequently, I have given the minor view loss no weight in my determination. 72Having regard to the relevant planning controls and the evidence provided, I find that the proposal for a partial fifth floor would have a detrimental impact on the heritage significance of the Brandt Bros building adjacent and that the impact is of such consequence that Level 4 should be deleted. Building separation 73I agree with the applicant's experts say that an additional 2 m separation will not make any difference to the visual privacy of the Park Lane Tower apartment closest to apartment 2.02. From my observation during the inspection of the Park Lane Towers apartments, the apartments viewed orientate primarily to the north and the proposal will have some impact on the visual privacy of the main bedroom and second bedroom/study, as they have windows in the eastern elevation. The second bedroom/study has a second large window and a pleasant outlook to the north. 74In my opinion, the offsetting of the floor levels enhances the degree of privacy between Level 2 of the proposal and the apartment opposite in the Park Lane Towers. Given the dense urban context, it is reasonable for the lower levels of the proposal to complete the street wall and be built to the boundary. 75The proposal includes two screens, containing vertical louvres fixed towards the north-west, to the external Busby Lane elevation of Apartment 2.02. The applicant seeks to have sliding screens, so that the occupant may have only half the window/balcony façade covered by the screens when desired. The Council seeks to have the screens fixed. 76I agree with the applicant's experts that two sliding screens allows some flexibility for arranging the screens and significantly increases the amenity of the apartment, compared to fixed screens, without unduly compromising the visual privacy of the bedrooms opposite. Internal amenity 77In my opinion, the planning of each level is not efficient and does not seek to use the form of the layout to create a sense of spaciousness within these small apartments; for example by configuring the media area to extend the living space visually. The layout creates a tight and confined entry next to a bathroom door and then a wide, useless corridor outside an oversized media room. Running the lift/lobby/stair across the site, instead of adjacent to the southern boundary, would reduce the overall depth of each apartment. 78However, despite these shortcomings, I am satisfied that the depth of the apartments and the configuration of the media room, while not achieving all the recommendations espoused by the RFDC, are not reasons to refuse this application. I accept that the proposal to draw air through a vertical duct does constitute an innovative technology in the spirit of the RFDC. Conclusion 79The proposal, as amended by this judgment, is higher and has a greater FSR than what is expected under the current planning controls and is lower than what is envisaged under the draft LEP, based on the advice contained in Exhibit 9. The principle consideration in this matter is the relationship of the proposal to the adjoining heritage item, irrespective of the relevant height and FSR controls. 80As no submission was made by Council regarding what public domain improvements they would envisage are appropriate under clause 2.2 of DCP 1997, no contribution is required. Interim findings - amended plans 81Interim findings were handed down on 17 October 2012 that required amended architectural plans and conditions of consent, as follows: * Level 4 of the proposal was to be deleted; * The screens to the Busby Lane façade of apartment 2.02 were to be operable. * The Council's proposed condition for a restrictive covenant to be registered on the Title of the Level 4 units was not required, as Level 4 is deleted. 82The parties provided amended plans and conditions on 30 October 2012. Orders 83The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. D/2012/462 for a four storey mixed use development at 43-45 Riley Street Woolloomooloo is approved, subject to the conditions in Annexure A. 3. The exhibits, other than exhibit 1, are returned. ____________ Susan O'Neill 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: 02 November 2012