Land and Environment Court New South Wales Medium Neutral Citation: Shelley Lane Pty Limited v Marrickville Council [2012] NSWLEC 1309 Hearing dates: 3,4 October 2012 Decision date: 06 November 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Application No. DA201100567 for the conversion of an existing industrial building into a residential flat building at the corner of Shelleys Lane and Empire Lane Marrickville is refused. 3. The exhibits are returned with the exception of exhibits 3, 5 and C. Catchwords: DEVELOPMENT APPLICATION: conversion of an existing industrial building into a three level residential flat building - permissibility - whether classified as a "conversion"- whether extent of modification is excessive- inconsistency with context, scale, built form and density in the area - impact on the heritage aspects of the building - inadequate cross ventilation - inadequate floor area for some units Legislation Cited: Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Marrickville Local Environmental Plan 2001 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy No. 65 Cases Cited: Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194 Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41 Remath Investments (No 6) Pty Limited v Botany Bay City Council [2000] NSWLEC 137 Category: Principal judgment Parties: Shelley Lane Pty Limited (Applicant) Marrickville Council (Respondent) Representation: Mr M Staunton, barrister (Applicant) Mr G Christmas, solicitor (Respondent) Landerer and Company (Applicant) Apex Law (Respondent) File Number(s): 10477 of 2012 Judgment 1COMMISSIONER: This is an appeal against the refusal of Application No. DA201100567 (the 2011 DA) for the conversion of an existing industrial building into a three level residential flat building containing 17 dwellings (as amended from 18 units during the hearing) and off street car parking for 11 vehicles located within the building at the corner of Shelleys Lane and Empire Lane, Marrickville (the site). The strata subdivision of the proposed development is also proposed. 2This appeal, including all evidence, was heard concurrently with a separate appeal for a similar development on the same site (Shelley Lane Pty Limited v Marrickville Council, Appeal No 10770 of 2012). 3The contentions raised by the council in this appeal are firstly, that consent cannot be granted as a residential flat building is not a permissible use on the site as: * the site benefits from existing use rights and as such, the ability to permit the residential flat building by way of cl 32 (see par 12) is not available, and * the proposed development is not "the conversion of a building" and as such, the ability to permit the residential flat building by way of cl 32 is not available. 4Secondly, if the Court does not agree that a residential flat building is not a permissible use, then consent ought not be granted as: * the conversion of a building is unacceptable because of the excessive extent of modification and consequent inconsistency with context, scale, built form and density in the area, * impact on the heritage aspects of the building, * inadequate cross ventilation, and * inadequate mix and floor area for some units. 5A number of residents provided evidence on the site inspection and the Court was provided with the correspondence from the advertising of the development application by the council. The matters raised by local residents that were not raised by the council in their contentions are: * increased traffic with unacceptable impacts on pedestrian safety and parking, * increased difficulty of pedestrian and vehicular access to existing residential properties, * loss of privacy, * overshadowing, * construction impacts, and * precedent The site 6The site is Lot Y in DP 954108. It is generally regular in shape with a 37 m frontage to Empire Lane, a frontage of 25.1 m to Shelleys Lane, a depth of 23.8 m on the eastern side boundary at a depth of 36.5 m on the southern boundary. The site area is 901.4 sq m. 7A corrugated iron industrial building previously used to manufacture timber boxes is located on the site. The building occupies the site from boundary to boundary with a stormwater channel located immediately to the east. 8A mix of single storey and two-storey residential dwellings are located to the north, west and south of the site with industrial development to the east. Relevant planning controls 9The site is zoned R2 Low Density Residential under Marrickville Local Environmental Plan 2011 (LEP 2011) which was gazetted on 12 December 2011. A residential flat building is not identified as a use that is "Permitted with consent" or Prohibited" within this zone however one zone objective relevantly states: To provide for office premises, multi dwelling housing and residential flat buildings only as part of the conversion of existing industrial and warehouse buildings. 10Clause 5.10 provides requirements for Heritage conservation. The site is identified as a heritage item under Sch 5, being Item 174 and described as "Enmore Box and Case Factory" and having "Local significance". The site is also within the Llewellyn Estate Conservation Area although the council raised no contentions over its location within a heritage conservation area.. 11The chronology of events shows the 2011 DA was lodged with the council on 28 November 2011, LEP 2011 was gazetted on 12 December 2011 and the refusal of 2011 DA by the council was in May 2012. The effect of this chronology is to invoke the provisions of cl 1.8A of LEP 2011 which state: 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 not commenced. 12The local environmental plan that applied prior to the site to the gazettal of LEP 2011 was Marrickville Local Environmental Plan 2001 (LEP 2001). Under LEP 2001 the site was zoned Residential 2(A). A residential flat building was not a permissible use within this zone except when subject to the provisions of cl 32, which state: 32 Conversion of industrial buildings to residential flat buildings (1) This clause applies to a building in existence on land zoned Residential 2 (A), 2 (B) or 2 (C) on the appointed day, being a building that was designed and constructed for an industrial or warehouse purpose and in respect of which the existing use provisions of the Act have ceased to apply. (2) Despite any other provision of this plan, consent may be granted for the conversion of a building to which this clause applies to a residential flat building. (3) The following provisions do not apply to development allowed to be carried out by this clause: (a) clause 33 (which relates to floor space ratios in respect of residential buildings), (b) clause 34 (which relates to the height of multi unit housing and residential flat buildings in the Residential 2 (B) and 2 (C) zones), (c) clause 36 (which relates to the height and floor space ratio of multi unit housing in the Residential 2 (A) zone). (4) Before granting consent for development referred to in subclause (2), the consent authority must take into consideration such of the following matters as are of relevance to the proposed development: (a) the impact of the proposal on the scale and streetscape of the surrounding locality, (b) the impact on surrounding properties, particularly in respect to overshadowing, loss of privacy, and visual intrusion, (c) the impact on the future residents of the building by surrounding properties, particularly in respect to dust, odour and noise, (d) the appropriateness of requiring, as a condition of any such consent, provision of landscaping or a private recreation area in the form of balconies and terraces, (e) the heritage aspects of the existing building, (f) the guidelines provided in Australian Standard AS 2021-2000-Acoustics-Aircraft noise intrusion-Building siting and construction, as amended from time to time, regarding noise reduction, (g) any guidelines, protocols or standards known to the consent authority to have been published by the EPA and which are relevant to remediation procedures, the type of contamination on the land or the type of use for which the land was, is or is proposed to be, developed, (h) other sources of potential contamination, (i) the building's suitability for conversion, (j) the proximity and accessibility of the building to public transport, (k) the degree of modification of the footprint, façade and height of the building, (l) the impact on employment opportunities in the area, (m) the size and mix of units or apartments, (n) the impact on traffic and parking and the nature of the surrounding streets. (5) When granting such a consent, the consent authority may impose conditions that: (a) require the investigation, sampling and testing of the land referred to in the application, and (b) require preparation of a remedial action plan for the land referred to in the application, and (c) require remediation of the land referred to in the application to an appropriate standard, and (d) prohibit the construction or erection of a building or the carrying out of a work on any part of the land referred to in the application until the responsible authority accepts in writing an independent review verifying the remediation of the land to an appropriate standard. 13State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)). Is the proposed development permissible? Have the existing use rights ceased to apply? 14Clause 32(1) raises three matters that must be satisfied. First, there was no dispute that the site is within land zoned 2(A) and second, that the building on the site is "a building that was designed and constructed for an industrial or warehouse purpose". 15The third matter relates to existing use rights and was in dispute. The dispute centres on the timing for the cessation of the existing use rights. If existing use rights apply, then the proposed development is not permissible. Conversely, if the existing use provisions do not apply then the proposed development satisfies cl 32(1) and the merits of the application can be considered. 16Mr Christmas, for the council, submits that all three matters need to be satisfied prior to the lodgement of the development application. As the existing use rights applied to the site at the time the lodgement of the development application, the third limb of the tests in cl 32(1) has not been satisfied and as such, the opportunity to have a residential flat building on the site is not available to the applicant. 17Mr Staunton, for the applicant, disagrees and submits that there is no such requirement contained in the clause. The only temporal requirement in the clause is that the building must have been in existence on land zoned Residential 2(A) on the appointed day. Clause 32(2) contains the power to grant consent and this power is enlivened when cl 32 applies. The circumstance in which cl 32(2) arises is when all three preconditions are satisfied. The only proscription is that it occurs prior to the grant of development consent. Mr Staunton submits that the circumstances are analogous to the accepted approach for objections under SEPP 1 and the provisions of owners consent where it has been held that they are not required at the time lodgement but can be provided at any time prior to the determination of the application (see Remath Investments (No 6) Pty Limited v Botany Bay City Council [2000] NSWLEC 137 at [17]). 18Mr Staunton further submits that this can be achieved in two ways. First, a statement indicating that immediately prior to the grant of consent the existing use rights in respect of the land are abandoned (see Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194 at [44]). In this regard, the applicant has provided such a statement (Exhibit F). Second, by the Court making preliminary findings to the affect that consent should be granted and upon the applicant abandoning its existing use rights, a development consent will be issued. Mr Staunton notes that this is the approach adopted by the council in similar matters. 19In balancing the competing submissions, I accept the submissions of Mr Staunton and find that there is no barrier, under cl 32(1), to the further consideration of the merits of the development application. Is the proposed development a "conversion" of an industrial building to a residential flat buildings? 20The town planning experts, Ms McCabe for the applicant and Mr Byrnes for the council, disagree on whether the proposed development is a conversion of a building to a residential flat building, pursuant to cl 32(2). The dispute centres on the word " conversion" as it is not defined in LEP 2001. Put simply, Mr Byrnes states that the extent of the changes is so significant that it is not a conversion but essentially a new development whereas Ms McCabe states that the changes can reasonably described as a conversion. 21On this matter, I accept the submissions of Mr Staunton and the evidence of Ms McCabe. I agree that as LEP 2001 is subordinate legislation, the terms in the document should be construed in a practical commonsense way having regard to the context in which the words are found and the purpose of the instrument (see Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41at [18 to 22] and s 33 of the Interpretation Act 1987). In the context of cl 32, the purpose is to allow the conversion of industrial buildings for residential flat development purposes by setting aside floor space ratio and height controls. This in itself suggests, contrary the evidence of Mr Byrnes, that the provision of additional floor area, as part of a conversion, is contemplated by the clause (but subject to the considerations in cl 32(4)). 22I agree with Ms McCabe that the degree of change to a building does not fall within the consideration of whether something is a conversion or not - as conversion is a term with no limits. I accept that the word conversion is essentially neutral and could potentially mean an increase or decrease in floor area. The word "conversion" should be given its broadest meaning although it is not unconstrained as cl 32(4) provides specific considerations, including qualitative assessments such as " the impact of the proposal on the scale and streetscape of the surrounding locality" (cl 32(4)(a)) and quantitative assessments such as "the impact on traffic and parking and the nature of the surrounding streets" (cl 32(4)(n)). 23I accept that the proposed development is a "conversion" for the purposes of cl 32(2) and find that there is no barrier to the further consideration of the merits of the development application. The merits - cl 32(4) 24Ms McCabe and Mr Byrnes disagree as to whether the proposed development satisfactorily addresses the following subsections of s 32(4) that must be taken into consideration before consent is granted: (a) the impact of the proposal on the scale and streetscape of the surrounding locality, (b) the impact on surrounding properties, particularly in respect to overshadowing, loss of privacy, and visual intrusion, . (k) the degree of modification of the footprint, façade and height of the building, . (m) the size and mix of units or apartments, 25As I understand, the disagreement in relation to s 32(4)(b) related only to "visual intrusion" and this was addressed as part of the discussion on "scale and streetscape of the surrounding locality" (s 32(4)(a)). 26Mr Brian McDonald for the council and Mr Paul Davies for the applicant provided expert heritage evidence and disagreed on whether the proposed development satisfactorily addresses the following subsection of s 32(4). (e) the heritage aspects of the existing building, The evidence - scale and streetscape (cl 32(4)(a)) 27Mr Byrnes states that the existing building form has a height and scale greater than ordinarily permitted in the zone due to the buildings historical land use. The extension of the existing building provides for an increase in height (up to 3.24 m) and broadening of the existing building envelope. Even accepting the generous provisions for the conversion of industrial buildings in cl 32; Mr Byrnes states that it was never contemplated that it would change the buildings fundamental form through substantive addition, extension or increased height. The proposal is excessive having regard to the bulk and scale being greater than the predominant two-storey built form in the area. 28Mr Byrnes further states that while no objection can be raised to the retention of the existing lawful building, any increase in height is unacceptable, as it will result in a building of excessive scale. The height of the proposed building will be visible from surrounding properties and streets and will result in a three-storey residential flat building form. The three-storey form will protrude upwards out of the existing building and is an excessive addition that is incongruent with the scale of existing buildings. Considering that the existing form of the building provides the capacity for two full levels of residential units and considering the general two-storey nature of surrounding development, the increase in scale and height brought about by the proposed development will have an unacceptable impact. 29Ms McCabe disagrees. She states that the streetscape comprises a variety of building forms and scale. The existing building occupies 100% of the site and is constructed boundary to boundary. The existing building at RL 15.21 at the ridge has a height between 7.2 m and 7.6 m and is essentially the scale of a two-storey structure. The height of the building is increased by 3.24 m from RL 15.21 m to 18.45 m. This results in the third level element being 1.48 m above the similar form on the adjoining industrial building to the east, and 1.5 m higher than the structure on the corner of Shelleys Lane (142a Juliett Street). Ms McCabe notes that the new level is setback from the parapet such that the prevailing form from Shelleys Lane and Empire Lane reads as two levels: essentially consistent with the existing gutter line. While the third storey element can be viewed at a distance along the northern end of Shelleys Lane, at the first floor level of the buildings fronting Victoria Road and Juliett Street and buildings from Victoria Road, Ms McCabe notes that these viewing locations are a significant distance from the site. The increased height, while greater than the existing height, is a modest increase when combined with the roof area of the new level that occupies approximately only 53% of the building footprint. 30Ms McCabe states that building footprint remains essentially unchanged. The eastern and southern facade also remains essentially unchanged whereas the western facade maintains the essentially solid elements with minimum openings for the residential use of the building. The degree of modification to the facade is minimal. Overall, and given the eclectic nature of the neighbourhood, the proposal does not result in any unreasonable impacts on the scale and streetscape of the surrounding locality. Findings- scale and streetscape 31There was general agreement that the building was appropriate for conversion and that the treatment to the facades of the building was acceptable. The major issue between the parties was the height of the third level and the impact on the scale and streetscape of the surrounding locality. 32I am satisfied that the proposed third level roof form unacceptably adds to the bulk and scale of the building in the streetscape of the surrounding locality. While I accept that the third level cannot be viewed from the streets immediately surrounding the site, it was agreed that the new level could be viewed from more distant locations. I have given no weight to the perspectives provided by the applicant (Plan No DA-01 and Plan No DA-03 of Exhibit A) as they focus on the views from the immediate streets where it was agreed that the third level cannot be viewed. Perspective SL 08 on Plan No DA-03 provides a view looking west from Shelleys Lane where the third storey would be visible however this perspective provides only the form of the proposed development and does not distinguish the existing building from the proposed third level.\ 33Similarly, the architectural plans are also unhelpful in terms of considering the proposed third level. Much attention is made in the architectural plans to identify the changes to the existing buildings through colour, shading and notations of different features however the proposed floor is poorly represented in the architectural plans, being uncoloured and represented only by a single line that identifies only the outline of this level (Plan No DA-10 and Plan No DA-11 of Exhibit A). The detail of the third level is only available through the sections (Plan No DA-12 of Exhibit A). 34Notwithstanding the inadequacy of the architectural plans, I can comfortably conclude that the proposed development will unacceptably impact on the scale and streetscape of the surrounding locality. The proposed third level will run almost the entire length of the building at a height some 3.4 m above the existing height and this will create a scale that is inconsistent with the scale of development in the area. The fact that the proposed third level will not be visible from the streets immediately adjoining the site is not the end of the inquiry. The ability to view the site and the proposed development from other locations is equally important in the assessment of scale and streetscape. In this regard, the scale of development is predominately one and two-storey residential with some industrial uses to the east. The existing building sits comfortably within the scale associated with the nearby residential and industrial uses, notwithstanding the different forms of land use. The proposed development will disrupt this existing compatible scale with a building that would largely overpower the one and two-storey residential dwellings and even exceed the height of nearby existing industrial uses. 35Principles 1, 2, 3, and 4 of SEPP 65 are also relevant for scale and streetscape. These state: 9 Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. 10 Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. 11 Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 12 Principle 4: Density Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. 36For the reasons set out in the preceding paragraphs, I do not accept that the proposed development represents "good design" when considered against Principles 1, 2, 3, and 4 of SEPP 65. 37Having considered the impact of the proposed development on the scale and streetscape of the surrounding locality, pursuant to cl 32(4)(a), I am satisfied that impact is sufficient to warrant the refusal of the application. The evidence - heritage aspects (cl 32(4)(e)) 38The contention states that: "the proposed development fails to respect the heritage significance of the building and inadequate information has been submitted that the application that shows that there has been proper consideration of the articles and Guidelines of the ICOMOS Australian Burra Charter (Articles 15, 21 and 24 of the Burra Charter) and a detailed assessment of the significance of the components of the building fabric and its spatial qualities". 39Expert heritage evidence was provided by Mr Brian McDonald for the council and Mr Paul Davies for the applicant. Both are architects with expertise in heritage matters. The experts acknowledge that the site is not identified as a heritage item under LEP 2001 but it is identified as a heritage item and is within a heritage conservation area under LEP 2011. 40Mr McDonald and Mr Davies agree that the Burra Charter (the Charter) underpins heritage assessments even though it is not noted or quoted in the LEP 2001. They agree that the Charter also needs to be read as a whole and that an understanding of the level of heritage significance of the place is essential to understand how to apply the Charter to a particular place. 41Mr McDonald states that Article 15 addresses change, particularly that decisions are to be guided by the significance of the place and its appropriate interpretation. Article 21 is relevant because it addresses adaption and provides that adaption is acceptable where it "has a minimal impact on the cultural significance of the place" and involves "minimal change to fabric, achieved only after considering alternatives". Article 24 is also relevant because the statement of significance in the heritage inventory sheet clearly identifies the historical significance derived from the manufacture of boxes since the 1920s and as a local workplace. The ability to interpret these associations is embodied in the fabric of the building. 42Mr McDonald states that the primary structural elements of the building comprise the timber posts and trusses in a three-gable form and brick wall. These elements are of a higher order of significance (moderate) than the envelope materials and concrete floor (low). Mr McDonald notes that the "metal rod trussed factory building" is a specific description in the Statement of Significance in the heritage inventory sheet SHI 2030294. The west doors and sign are a higher order of significance as original fabric of interpretive value (moderate). The envelope materials are susceptible to repair and replacement over time; the primary structure is not. In his opinion the proposal removes the more significant "bones" completely and substantially reconfigures or internally obscures the lower significance envelope elements. 43In considering the conversion, Mr McDonald states that it is appropriate to consider what components of the buildings demonstrate the former use and character of the building. The removal of the components that comprise the underlying structure and shape severely diminishes the significance of the item and the ability to interpret its historical meaning and associations with an industrial activity. 44Mr Davies states that the Charter is not referenced in LEP 2001 or 2011 and does not have a specific role in assessment of a development application. It is a document that provides broad guidance and the terms on which a DCP should be based. It is not relevant to refer to isolated clauses from the Charter, where the LEP and DCP have already been based on it. Importantly, the Charter should be read as a whole and not relied upon selectively. 45Mr Davies states that the building, apart from some changes such as the addition of a doorway and the internal addition of a mezzanine, is largely as it was built and that the nature of the lightweight and minimal construction is that there is no particular element of the building that has a level of significance above any other element. The building is a large shed where the framing and cladding cannot be separated from other features, in terms of heritage value. Overall, the building has modest or moderate heritage value and the various elements share that modest assessment of value. There are no aspects of the building that have high or exceptional heritage value. 46Overall, Mr McDonald states that the extent of change to the buildings facade, height an overall massing would turn it into a totally different built form, negating the simple three bay gable industrial shed character that reflects its former use and construction. Mr Davies on the other hand states that under LEP 2001 the extent of change does not have a major or even significant impact on the form of the building. It will continue to be seen and understood as a form industrial building that has been converted to a new use and the openings and change to the roof area are typical of, and consistent with the types and extent of change widely seen in the adaption of small industrial buildings for residential use Findings- heritage aspects 47Even though under LEP 2001, the site was not a heritage item nor located within a heritage conservation area, the heritage aspects of the building still need to be considered pursuant to cl 32(4)(e). 48The council's contention relates firstly, to the lack of consideration to certain articles within the Charter, and secondly, an assessment of the significance of the components of the building. The latter was provided during the hearing although there was disagreement between Mr McDonald and Mr Davies. 49On the first matter, I agree with Mr Davies that the role of the Charter is to set a framework for heritage assessments that forms the basis for LEP and DCP requirements. It is not usually used as a means of assessing a development application in the absence of a specific heritage listing in the LEP although the broad principles of heritage conservation are relevant in assessing heritage impacts. 50On the second matter, the term "heritage aspects" is not defined and is not commonly used in heritage matters. Notwithstanding the uncertainty of the term, I am satisfied that it should be given a broad meaning. Even though the site is not a heritage item under LEP 2001; at the time of the hearing, the "heritage aspects" of the site were addressed in a joint report of Mr McDonald and Mr Davies, and also the Statement of Heritage Impact prepared by Graham Brooks and Associates (November 2011). Given the broad meaning of "heritage aspects", I propose to rely on these documents in my consideration of cl 34(4)(e). 51The Statement of Heritage Impact describes the Statement of Significance) as: The building is of local historical significance for its continuous industrial use for box and case making since the 1920s. Of social significance as a local workplace manufacturing boxes and cases over the same time period. Of research/technical significance as a locally representative c.1920s metal rod truss factory building. Rare for its continual i use for manufacture of boxes and cases since the 1920s. Description Three bay factory building located at the southern corner of Empire Lane and Shelleys Lane, of brick and corrugated steel with a gabled corrugated steel roof with box gutters between the gables. The gable ends face Shelley Lane. Timber and metal rod trusses. Larger timber double doors, no window openings. The building is built to the street alignment along both the laneway frontages. 52Mr McDonald and Mr Davies agree that the significance of the building is principally (but not only) related to its now historic use for box manufacturing. That is an associational heritage value. There is also significance embodied in the fabric of the building as a representative example of a modest minimally built industrial building from the inter-war period. The building has streetscape value embodied in the physical fabric and for that, while not characteristic of the heritage conservation area should be retained as evidence of the former industrial uses throughout the area. 53Where Mr McDonald and Mr Davies depart is the extent of the modification of the building and the consequent impact on the heritage significance of the building, including the significance of different elements of the building. I agree with Mr McDonald that the post and truss construction is an important feature of the building and that the loss of this elements is a significant negative aspect of the proposed design. Mr McDonald calculates that 100% of the posts will be lost and 80% to 100% of the trusses lost. There is no valid reason why the heritage significance of the building should not be appreciated from within the building through the retention of the posts and trusses. I am not satisfied that the poles and trusses could not reasonably be included in the conversion of the building for residential purposes. There was no dispute that the posts and trusses are capable of being used in the conversion of the buildings as both experts describe their condition as "good". While the building is simplistic in its design, the posts and trusses are a substantive part of the building, both structurally and visually from within the building. I agree with Mr McDonald that they should be included as part of the conversion of the building. No evidence was provided to suggest that the posts and trusses unacceptably limited the conversion of the building, beyond potentially reducing the number of units. This, in itself is not a matter that would support the removal of the posts and trusses. Mr McDonalds unchallenged evidence was that they could be included in any conversion for residential use, albeit in a different design. 54I am also mindful of Article 21 in the Burra Charter that relates to adaption, and states that adaption is acceptable where it "has minimal impact on the cultural significance of the place" and involves "minimal change to fabric, achieved only after considering alternatives". Mr McDonald states that he is unaware of any alternates being considered and there is no discussion on alternatives in the Heritage Impact Statement. 55I have addressed the height of the proposed building in the previous paragraphs and have found it unacceptable because of the size of the proposed new roof and the significant loss of one of the dominant features of the building; i.e., the three gable roof form. It follows that a loss of this feature of the building is also unacceptable if considered in a heritage context. Additionally, I find the form of the third level unacceptable. The proposed third level roof form is a non-symmetrical form that does not display any characteristics or consistency with the triple gable form that it replaces. The proposed roof form has a fall to the north of 3° and 12° to the south. When viewed from the east and west, the different roof pitches are an obvious and contradictory element within a simple and uncomplicated industrial building. 56Having considered the heritage aspects of the existing building, pursuant to cl 32(4)(e), I am satisfied that additional height and form of the proposed roof is sufficient to warrant the refusal of the application. The evidence - degree of modification (cl 32(4)(k)) 57The degree of modification was largely addressed by the experts under the other considerations in s 32(4) with Mr Byrnes stating that the modification is excessive having regard to the bulk and scale are being greater than the predominant two-storey built form in the area, the heritage value of the building, and the visual intrusion on private and public spaces. 58Ms McCabe states that building footprint remains essentially unchanged. The eastern and southern facade also remains essentially unchanged whereas the western facade maintains the essentially solid elements will minimum openings for the residential use of the building. Overall the degree of modification to the facade is minimal. 59Mr McDonald states that conversion implies that the building would substantially retain most of its form and fabric. In this case, the level of demolition proposed creates an unacceptable level of physical change. The height is also excessive as an outcome of altering the roof of the existing building to create a third floor level because it extends over almost the entire length of the building and introduces a scale greater than the predominantly one and two-storey of surrounding buildings and greater than the existing industrial building to the east. 60Mr Davies states the height increase to be approximately 10% above the current ridgeline and this could not be considered to be excessive. Mr Davies also states that there is no impact on the immediate setting of the building or from locations in adjoining streets. The impact could be described as modest and acceptable. Findings- the degree of modification 61Mr McDonald and Mr Davies agree on a description of the existing building as : The building on the site is principally a timber framed structure with a timber truss roof in three longitudinal bays. Two rows of timber columns are located along the internal bay lines. The building has a brick wall adjoining the backyards to the south (presumably to provide fire separation when built) and timber framed corrugated iron clad walls to the other three elevations. Internally the building is not lined. There is a major recessed door entry to the west (that no longer has level access) and a secondary vehicle opening to the north. The building has a range of small window openings and louvres around it. The roof was replaced in the recent past and has both metal and translucent sheeting. The floor is concrete, probably of later date than the original construction. The floor level of the building is set slightly below street level. The interior contains a framed mezzanine for storage and amenities within the northern bay. This is a relatively recent addition. The building has been used until recently for both timber and cardboard box construction and manufacture. It is presently vacant. Overall the building is in deteriorated but stable condition. + The roof is sound. + The internal timber posts and roof trusses are generally sound. + The walls are damaged with considerable sheet degradation, some rust and evidence of repair work and replacement sheeting. + The brick wall appears sound but in need of maintenance. + The timber wall framing is generally sound but requires some repair work and stabilisation. + The concrete floor has some deterioration + The joinery is deteriorated, however the main elements such as the large timber doors remain intact, but weathered. In its present form the building has a limited range of uses as it is not weatherproof, has no climate control and basic services only. The building is not BCA compliant and is unlikely to be without significant work. The building services are basic. 62In general terms, the modifications proposed by the application include: 1. External wall sheeting is to be retained in situ on the existing timber framing for all sections of the building that are retained with metal cladding. 2. Where sections of wall are to be removed for new openings, re-usable cladding will be salvaged and used to repair or replace damaged cladding elsewhere on the building. 3. The external and, where exposed, internal cladding is be painted as required with a grey metallic paint that would be consistent with its industrial character. 4. The timber wall framing will be repaired and patched as required to make it sound from the interior of the building. 5. Where the existing timber framing is visible within the building envelope, it will remain unlined with its current finishes. It will be cleaned but not refinished. 6. It is proposed to retain the existing louvres and minor openings. They will be treated with wood preservative. In time if they fail they will sheeted over to match the exterior cladding. 7. In the future as the external cladding fails it will be replaced with new galvanised iron cladding in short sheet lengths. The aim is to replace a facade at a time and to stagger this work over a period of years to avoid a complete change to the exterior of the building. 8. The main entry doors (timber) are to be fixed against the splayed walls in an open position, with their current external face facing the street. This will display the painted signage on the doors. The doors will have minor and careful repair work done to ensure they are sound. They are not to be repainted or refinished apart from conservation. 9. The small Acme Box Factory sign is to be retained in situ. 10. The rear brick wall is to be retained in its entirety. The south face will remain unaltered with its present finishes. The internal face will be cleaned and left in its current form apart from any required structural work. 11. The concrete ground slab will generally be retained in situ. It will form the finish for the parking area. Small areas of change will be ramping to provide vehicle access through the new wall opening and provision of stormwater drainage. Drainage will be designed to minimise cuts into the slab. The area of slab under the new units will be retained and penetrations minimised. However the new wall construction will require penetrations through the slab. 12. The roof is to be dismantled or, if possible, trimmed in position. The internal columns and roof trusses are to be dismantled. The two end roof trusses are to be retained. It is noted that the current roof cladding is of recent origin. 13. The roof trusses are to be cut down and placed back into position (where they are retained) to interpret some of the earlier form and structure of the building. They will not however be continuous. 14. The perimeter timber columns are all to be retained in situ. 15. The dismantled internal columns are to be re-used to frame the sides of the new street openings. 16. Other recovered timber will be used on site as part of the detailed finish of public areas. This is yet to be developed in detail. 17. The perimeter form of the roof, that is matching the existing roof form, will be reconstructed and will use sections of the existing roof cladding as a finish. The framing will not be seen as it is internal but the roof finish will be maintained in the same location as the current roof. 63There was general agreement that the building was appropriate for conversion and acceptable in many aspects however the major concern raised by the council experts was the unacceptable degree of modification created by the third level. 64With the benefit of the site inspection and an understanding of the plans, I agree with the council experts that the degree of modification to the building brought about by the proposed third level is unacceptable for the reasons I have set out previously on height, form and streetscape impact when considered in the context of the area where the building can be viewed and the heritage aspects of the building. 65Having considered the degree of modification of the building, pursuant to cl 32(4)(k), I am satisfied that the degree of modification is sufficient to warrant the refusal of the application. The evidence - cross ventilation, size and mix of units (cl 34(4)(m)) 66The size of some apartments was in dispute between Ms McCabe and Mr Byrnes based on the Rule of Thumb requirements in the RFDC where a one bedroom apartment has a minimum size of 50 sq m and a two-bedroom apartment has a minimum size of 70 sq m. These are based on Affordable Housing Services requirements. 67With the amendment to Level 1 that reduced the number of units from 18 to 17 by reconfiguring 3 x 1 bedroom units to 2 x 2 bedroom units on this level, the remaining one-bedroom units now have a range in size between 50 sq m and 63 sq m, thereby satisfying the Rule of Thumb requirements in the RFDC. 68As I understand, the council's concern over the mix of units was addressed when Level 1 was reconfigured to reduce the number of one-bedroom units and provide for a total of 17 units. I also understand that a further amendment that provided for small windows in the eastern and western elevations that the council's concerns over cross ventilation were also satisfactorily addressed. 69Principle 7 of SEPP 65 states: 15 Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 70For the reasons set out in the preceding paragraphs, I accept that the proposed development represents "good design" when considered against Principle 7 of SEPP 65. Resident concerns Traffic/pedestrian safety 71The potential impact of the development on vehicle movements and pedestrian safety was a major issue raised by residents who provided evidence at the hearing and also in the submissions made to the council when the development application was advertised. The concerns of the residents on this issue was originally supported by the council however following a report from independent traffic consultants for the parties, Mr McLaren and Mr Hallam, this concern was no longer pressed by the council. There was agreement between Mr McLaren and Mr Hallam that to address the concerns raised by the residents over pedestrian safety and vehicle conflict, a 10 km/hr Shared Zone should be created adjoining the site in Shelleys Lane and Empire Lane. The Shared Zone would include all necessary signage, concrete banding to demarcate threshold points and sprayed coatings of bitumen road surface. 72I accept the conclusions of Mr McLaren and Mr Hallam as an appropriate means to address pedestrian safety and potential vehicle conflict adjoining the site. Loss of privacy 73The potential loss of privacy through overlooking was raised by residents to the north and west of the proposed building from the north facing balconies on Levels 1 and 2. 74With the benefit of the site inspection, including some adjoining residential properties, I am satisfied that loss of privacy would not be reason to refuse the development application given the separation distances, the relatively dense settlement pattern of development in the area and proposed screening devices on Level 2. Overshadowing 75Based on the shadow diagrams submitted with the development application, that identify the existing shadows and the shadows cast by the proposed development, I am satisfied that overshadowing would not be a reason to refuse the development application. Construction impacts 76I accept the approach of the council that any construction impacts are best addressed through a construction management plan that can be provided as a condition of consent. Precedent 77While precedent can be a valid planning consideration, I do not accept that it is relevant in this case. The proposed development only gains its permissibility through the existence of the industrial building on the site. The circumstances are relatively unique and given the flexibility available for the conversion of industrial buildings, any other applications for similar developments would rely on the individual circumstances and characteristics that relate to that particular site. Orders 78The orders of the Court are: 1. The appeal is dismissed. 2. Application No. DA201100567 for the conversion of an existing industrial building into a residential flat building at the corner of Shelleys Lane and Empire Lane Marrickville is refused. 3. The exhibits are returned with the exception of exhibits 3, 5 and C. _____________ G T Brown 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: 06 November 2012