Land and Environment Court New South Wales Medium Neutral Citation: Newhaven Place Pty Limited v Leichhardt Council [2012] NSWLEC 1325 Hearing dates: 24 and 25 October 2012 Decision date: 25 October 2012 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The matter is set down for further hearing on conditions (if required) before me at 9.15am on Thursday, 15 November, for a maximum of fortyfive minutes. (2)The applicant is to file and serve revised settle plans that reflect this decision by the close of business on 6 November 2012. (3)The respondent is to file and serve, including the filing electronically by email to the Court for my attention, revised settle conditions of consent by the close of business on 9 November 2012. (4)If directions (2) and (3) are complied with I will make orders in chambers to give effect to my decision and vacate the conditions hearing on 15 November. (5)Liberty to re-list before me on two days notice. Catchwords: Residential Flat Building; Streetscape Legislation Cited: Leichhardt Local Environmental Plan 2000 Category: Principal judgment Parties: Newhaven Place Pty Limited (Applicant) Leichhardt Council (Respondent) Representation: Solicitors Ms J Reid of Wilshire Webb Staunton Beattie (Applicant) Ms R McCulloch of Pikes & Verekers Lawyers (Respondent) File Number(s): 10339 of 2012 Judgment 1SENIOR COMMISSIONER: Lilyfield Road in Sydney's inner west runs, in general terms, in an east to west direction along the former goods line and, on its other side, parallel to, again in general terms, the City West link. 2Properties along this road have had, over many years, industrial buildings on them that have been interspersed within what, particularly on the western portion of the road, has been a residential precinct. 3The fact that these industrial buildings can be recycled through adaptive reuse or modification for residential purposes is acknowledged by a specific provision in the Leichhardt Local Environmental Plan 2000 (the LEP) contained in cl 19(5) of that plan. 4The site on the corner of Henry Street, Lilyfield Road and Derbyshire Lane is the subject of an application for such a recycling of an industrial site. The application was originally made to Leichhardt Council, supported by an application addressing the provisions of cl 19(5) of the LEP. 5As part of these proceedings and in the process through the council, the application was also sought to be supported on the alternative basis of State Environmental Planning Policy No 1 objections to compliance with the density and hence maximum floor space ratio control contained in cl 19(2) of the LEP and the landscaping area requirements set out in cl 19(3) of the LEP. 6Each of these controls in the LEP are development standards and are amenable to objection for their compliance. It is, in my view, the appropriate path to follow, despite the evolutionary process that has attended this application, to deal first with the objections to compliance with cll 19(2) and (3) and only if those objections were not able to be sustained, to move on and consider whether or not the applicant could rely on and take advantage of the beneficial and facultative provisions for building conversion and adaptation that are contained in cl 19(5). 7I had the advantage of inspecting the site (which is an old warehouse/manufacturing premises with a saw-toothed asbestos roof) in company, with the legal advisors of the parties and those advising and assisting them. It is, perhaps, unnecessary for the purposes of this decision to describe the wide, eclectic (and in one instance rather exotic) occupancies that currently inhabit the premises. It is, however, sufficient to say that contained within the building are no features of any intrinsic architectural merit, despite what might be the specialist cultural merits attaching to some of the fittings. 8The proposal seeks to retain, in essence, a large amount of the external masonry wall fabric of the building along all four of its facades. 9For the purposes of the State Environmental Planning Policy No 1 objection strand, if I might so describe it, of this application, there are written objections to compliance with the development standards, and again - solely for the purposes of the application on this basis, a number of propositions advanced by Mr Darroch, the applicant's expert planner, proposing that lesser areas of the external masonry walls be retained, particularly to the southeast and southwest of the secondary frontages and along the main southern side immediately adjacent to the only adjoining property. 10If it were to be necessary to deal with the application under cl 19(5) of the LEP, the concessions that are proffered by Mr Darroch to open up the rear of the site and to make the landscaping more open and visible are not proffered for the purposes of the required assessment under cl 19(5)(a). 11The evidence that was given concurrently by Mr Darroch and by Ms Laidlaw, the expert consultant planner for the council, in the final analysis reached an agreed position that contained little residual conflict between them. 12In essence, Mr Darroch supported, understandably, the two objections pursuant to State Environmental Planning Policy No 1. Whilst Ms Laidlaw indicated that she felt that the objection to compliance with the landscaped area provisions of the LEP could be supported, she remained resisting of the proposed objection to compliance with the floor space ratio. 13At this time, it is convenient to note that the maximum floor space ratio that is permitted in the Leichhardt density area pursuant to cl 19(2) of the LEP is 0.5:1 whilst the development that is proposed is of 1.8:1 - a significant numerical exceedence, if viewed in abstract. 14An abstract consideration is not, in these circumstances, however, the appropriate starting point. The appropriate starting point is a consideration of the extent of the present development on the site which is in itself currently a little in excess of that 1.8:1. 15The result of that is that Ms Laidlaw accepts, subject to some comparatively minor matters to which I will return, that a significant exceedance of the floor space ratio is not only permissible but appropriate in the circumstances of this site being one with three street frontages and a slope that generally runs from northeast to southwest across the site. 16She supported the design that is proposed, in its final amended form, of having the bulk of the built form towards the Lilyfield Road frontage with a different but nonetheless striking roof form to that frontage at a height somewhat modestly above the present saw-toothed roof of the building on the site. 17The matters that were of concern to her, in the context of consideration of these matters pursuant to State Environmental Planning Policy No 1 objections, boil down to the length of the two and a half to three storey presentation of the building, on its western side, to Henry Street and the angle at which the mansard roof elements retreat from the top of the wall form along that frontage (there being a mix of angled mansard elements and vertical balcony and other elements with flat rooves along that portion of the proposed development). 18In the final analysis, those matters that stand between the parties for an approval based on cl 19(2) and (3) and the objections to compliance with the development standards boil down to two. 19The first is whether unit 13, as proposed, should be deleted and a further unit within the proposal designated as the second adaptable unit (in order to break up the presentation to Henry Street and provide a further stepping down in the site) and, second, whether the angle of the mansard portions of the roof should be at an angle of forty-five degrees rather than sixty degrees. 20It was, in the final analysis, the agreed position reached that if I granted an approval subject to my determination of those two matters, there was no need for me to reach a determination concerning whether or not the proposal could be supported pursuant to cl 19(5) of the LEP relating to building conversions and adaptation. 21As I indicated during the latter stage of the submissions, it seemed to me that subject to me making a determination on those two residual matters, it was appropriate to grant an approval including sustaining the two State Environmental Planning Policy No 1 objections. 22I have reached the conclusion that one of Ms Laidlaw's concerns is sufficient to warrant a requirement to change the proposal and that the other does not. 23The matter that I consider causes the Henry Street presentation to be in conflict with the objectives that are contained in cl 17 of the LEP relate to the question of whether the presently proposed presentation to Henry Street would be complementary to and compatible with the pattern of surrounding buildings. 24Although the mansarding is, in my view, consistent with the provisions of the relevant controls in the Leichhardt Development Control Plan 2000 in achieving the desired future character, I do not consider that the extent of the unbroken façade (without additional stepping down Henry Street) can be regarded as compatible with the pattern of surrounding buildings. These are predominantly of a lower scale residential nature, both down Henry Street on the side of the development and opposite on the far side of Henry Street to the south of the dry cleaning establishment on the corner of Henry Street and Lilyfield Road. 25The way to deal with that (as was canvassed during the course of the expert planning evidence) is to delete unit 13 from the development. With respect to the angle of the mansard roof, this comes to a matter of fine balancing of appearance and amenity. First, I accept as self evident (although there was technically no evidence on this point) that the increased raking to the roof that would be necessary to meet Ms Laidlaw's concerns would have an adverse impact on the amenity of the occupants of the premises where such additional raking were to occur. 26Second, I accept Mr Darroch's evidence (and am fortified in this regard by the perspectives that we had of the site during the course of the site inspection) that a casual observer would be unlikely to draw any significant distinction between a raking of sixty degrees and one of forty-five degrees, that being that which would be triggered if an assessment were being made of whether the raking was complementary to and compatible with the style and pattern of surrounding buildings. 27As a consequence, I am satisfied that, subject to the parties considering the proposed without prejudice conditions of consent and the preparation of plans to reflect the merit elements of the decision that I have just given, that the orders of the Court (after the plans and conditions are settled) should be that the appeal be upheld and that the revised development be granted consent. 28Self evidently, I am not in a position to formalise those orders absent the finalisation of plans reflecting this decision and for discussion by the parties of the proposed without prejudice conditions of consent. 29The plans will need to reflect not merely the deletion of unit 13 but also the matters that are reflected in Mr Darroch's markings, on pp 13 to 18 of the joint planning experts' report, of the proposed extent of additional opening up of the walls on the south-eastern, southern and south-western aspects of the building. 30The way to deal with the matter further is to set the matter down for a further hearing on conditions (if required) but to provide in the directions that I give that if revised plans accepted by the council as reflecting this decision are filed and served and there are settled conditions of consent that are provided to the Court, the further contingent hearing on conditions will not need to go ahead and I will make orders in chambers reflecting the outcome of the decision I have just given. 31I therefore give the following directions: (1)The matter is set down for further hearing on conditions (if required) before me at 9.15am on Thursday, 15 November, for a maximum of fortyfive minutes. (2)The applicant is to file and serve revised settle plans that reflect this decision by the close of business on 6 November 2012. (3)The respondent is to file and serve, including the filing electronically by email to the Court for my attention, revised settle conditions of consent by the close of business on 9 November 2012. (4)If directions (2) and (3) are complied with I will make orders in chambers to give effect to my decision and vacate the conditions hearing on 15 November. (5)Liberty to re-list before me on two days notice. Tim Moore Senior Commissioner 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: 27 November 2012