Land and Environment Court New South Wales Medium Neutral Citation: Tariq v Council of the City of Sydney [2013] NSWLEC 1096 Hearing dates: 20 May 2013 Decision date: 04 June 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development application D/2012/1669 for the demolition of an existing warehouse and the construction of a mixed use development at 144-154 Commonwealth Street, Surry Hills is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A and 9. Catchwords: DEVELOPMENT APPLICATION: demolition of an existing warehouse and the construction of a mixed use development - no planning issues raised by council - resident concerns relating to excessive height, heritage impact and unsuitable modern design for the area, overshadowing, loss of privacy, potential structural damage during construction. Legislation Cited: Environmental Planning and Assessment Act 1979 South Sydney Development Control Plan 1997 South Sydney Local Environmental Plan 1998 Sydney Development Control Plan 2012 Sydney Local Environmental Plan 2012 Cases Cited: Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 Blackmore Design Group Pty Ltd v North Sydney Council [2002] NSWLEC 279 Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 Category: Principal judgment Parties: Mohammad Tariq (Applicant) Council of the City of Sydney (Respondent) Representation: Mr P Clay SC (Applicant) Mr A Hawkes, solicitor (Respondent) Gadens Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 11230 of 2012 Judgment 1COMMISSIONER: This appeal is against the deemed refusal by the Council of the City of Sydney (the council) of development application D/2012/1669 for the demolition of an existing warehouse and the construction of a 5 storey mixed use development consisting of 2 ground floor retail/commercial tenancies, 20 residential units above and a basement carpark containing 14 spaces at 144-154 Commonwealth Street, Surry Hills (the site). 2The contentions raised by the council are: * the entry driveway and kerb are not acceptable, * the number of parking spaces is excessive, * a service space is not provided, * the architectural plans contain some errors, * modifications are required to address matters such as the lift overrun, floor to roof height and building materials, * updated landscape plans are required, * additional overshadowing analysis is required, and * the public interest. 3Following the submission of additional plans and information in response to the contentions, the council accepted that there were no planning issues that warranted the refusal of the application although the concerns expressed by the local residents remained. The site 4The site consists of Lot 1 in DP 727376 and Lot 1 in 433617. It is rectangular in shape with a 27.2 m frontage to Commonwealth Street to the west, a 26.965 m frontage to Batman Lane to the east and side boundaries of 30.845 m and 30.775 m, giving a site area of 834 sq m. 5The site contains a two-storey brick building with a metal roof that occupies the whole site. It is currently used for warehouse, retail and commercial purposes. The site is relatively flat with a minor fall of approximately 0.5 m from east to west. 6The area in the vicinity of the site has a mixed character. To the north of the site is an 8 storey commercial building currently used as serviced offices. To the south is a contemporary 3 storey building used for commercial purposes on the ground floor with residences above. Further to the south are 2 storey terrace houses of varying styles and heights. To the east of the site is Batman Lane; the site of a number of terrace houses which face Reservoir Street, the entrances to a number of terraces with a frontage to Batman Lane, and the rear of a number of properties which have their frontage to Smith Street further to the east. To the west of the site and, across Commonwealth Street, is a row two-storey terrace houses directly facing the site, some of which are used for commercial purposes. Relevant planning controls 7The site is currently within Zone R1 General Residential under Sydney Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible with consent in this zone. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 8Clause 4.3 states: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square: (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. 9The Height of Buildings Map provides for a maximum height of 15 m. There was no dispute that the proposal does not satisfy this height having a maximum height of 19.650 to the top of the lift overrun. 10Clause 4.4(2) states: (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 11The Floor Space Ratio Map provides for a maximum floor space ratio (FSR) of 2.5:1. There was no dispute that the proposal satisfies this FSR having an FSR OF 2.28:1. 12Sydney Development Control Plan 2012 (DCP 2012) commenced with the coming into effect of LEP 2012. 13As the development application was lodged but not determined prior to the coming into effect of LEP 2012, cl 1.8A applies. This clause states: 1.8A Savings provision relating to development applications (1) 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. 14The environmental planning instrument that applied to the site prior to the coming into effect of LEP 2012 was South Sydney Local Environmental Plan 1998 (LEP 1998). Under LEP 1998 the site was within Zone No 2(b) -the Residential (Medium Density) Zone. The proposed development was permissible subject to cl 10 which states: 10 Zone objectives and general development controls Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located. 15The relevant zone objectives are: The objectives of Zone No 2 (b) are: (a) to enhance the amenity of existing medium density residential areas, and (b) . (c) to ensure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (d) . . (e) to facilitate a higher density and diverse forms of residential development on appropriate sites, and (f) .. 16South Sydney Development Control Plan 1997 (DCP 1997) applied at the time of LEP 1998 and provided for a maximum height of 6 m and a maximum FSR of 1:1. 17Mr Hawkes, for the council, submitted that the relationship between LEP 2012 and LEP 1998 and DCP 2012 and DCP 1997 is best explained by Tuor C in Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009. As in this case, LEP 2012 was a draft LEP when the application was lodged and although it has now commenced, it includes a savings provision and therefore, in its terms, applies to the application "as if this Plan had been exhibited but had not commenced". Tuor C found that as LEP 2012 has been gazetted it must be imminent and certain and should be given significant weight such that the proposal should be consistent with the objectives and planning intent of LEP 2012 (see Blackmore Design Group Pty Ltd v North Sydney Council [2002] NSWLEC 279 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289). Similarly, DCP 2012 was a draft when the application was lodged and has commenced with the making of LEP 2012. DCP 2012 does not include a savings provision relevant to the application and it repeals DCP 1997. Tuor C found that DCP 2012 should not be given determinative weight but should be taken into consideration, particularly in determining the desired future character (see Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). Mr Clay SC, for the applicant, agreed with the approach suggested by Mr Hawkes. The resident concerns 18The residents at the site inspection and at the end of the advertising period (that extended beyond the time if the hearing but leave was granted to file any further submissions prior to the matter being determined) raised a number of matters. These can be summarised as: * excessive height, * heritage impact and unsuitable modern design for the area, * overshadowing, * loss of privacy, * potential structural damage during construction, and * flooding of carpark. Height 19The height of the proposed development was a consistent concern of the residents who gave evidence to the Court. They opposed the height of 19.65 m and maintained that the maximum height of 15 m should be complied with. 20The applicant responded to the council's contention of excessive height through amended plans that were provided on 10 May 2013 and 14 May 2013, some six days prior to the hearing. Consequently, the council did not raise excessive height as a contention. 21As I understand, the council's acceptance of the additional height above 15 m was drawn from the comments of the council's urban designer, Ms Ch'ng (who participated in a joint report with Ms McNamara, the council's town planner, and Mr Betros, the applicants town planner). In an internal memo (Exhibit 4, p457), Ms Ch'ng states, in relation to an earlier version of the development: The approach of locating the higher part of the building to the north against the 8 storey commercial building has some merit because it conceals the large amount of blank side wall. However, it is the extent and height of this taller part of the building that contributes to the Proposal being out of scale with the existing context. The diagram shows (in red) the amount of bulk that exceeds the height control of 15m and 4 storeys (the red dotted line). The diagram below also shows that a 4 storey building has a much better relationship to the predominant context of the terrace housing rather than the anomalous 8 storey commercial building . The overall proposed building height is almost double the height in storeys and exceeds the height in metres by 9.5m. Levels 5 and 6 should be removed as it is excessive height. This would still result in a 5 storey building that varies the height in storeys control by one storey. However, acknowledging the immediate context of the 8 storey commercial building the removal of Level 6 may be sufficient to reduce the height and bulk of the building to be an acceptable fit with the context. At 6 storeys the building will provide an adequate transition, conceals the blank side wall of the commercial building and is more commensurate with the height in storeys control. A 6 storey building still varies the DCP 2012 height in storeys control by 2 storeys. Recommendations ■ Reduce the amount of bulk and scale above the height control to improve the relationship of the building with the surrounding terraces. The following areas can be reduced: Remove Level 6. - Remove Units 20, 21, 23 and 24. This will also reduce the FSR to approximately 2.27:1 so that it is within the FSR control of 2.5:1. Cut back the glass line for level 5 to reduce the bulk to the rear. 22The proposal before the Court effectively adopts the recommendations of Ms Ch'ng. In considering the concerns of the residents and the comments of Ms Ch'ng, I have little trouble accepting that the design (despite its breach of the 15 m height requirement) is a desirable and a thoughtful response to the context in which the site is located. In my view, it could reasonably be argued that a development that complies with the 15 m height requirement will have a greater impact on the adjoining and nearby residential properties than the proposed development (assuming the same FSR or an FSR of 2.5: 1) and have a less sympathetic relationship with its neighbours. In general terms, the proposed development provides a positive contribution to the area by partially screening the blank wall of the 8 storey high anomalous building next door, enabling most of the overshadows cast by the building to fall within the shadow cast by the existing adjoining building and providing a suitable transition to the lower form of development to the south. 23Even though cl 1.8A provides that LEP 2012 applies to the application "as if this Plan had been exhibited but had not commenced" I am satisfied that it should be given determinative weight as it represents the objectives and planning intent for the site. Similarly, I accept that the breach of the 15 m height requirement can be supported as it reinforces the objectives and planning intent for the site compared to a building that strictly complies with the maximum15 m height requirement. Heritage impact and unsuitable modern design for the area 24A Heritage Impact Statement (HIS) prepared by Urbis (October 2012) was provided with the development application although it addressed a development that was higher and with more floor space than the development considered by the Court. The HIS addresses LEP 1998. LEP 2012 when it was in draft form, City of Sydney Heritage Development Control Plan 2006 and DCP 2012 when it was in draft form. 25The HIS concludes by stating: It is considered that the proposed works on the subject site will have no detrimental impacts on the streetscape or the Reservoir and Fosterville Conservation Area. (Conservation Area - General under LEP 2012) The current building demonstrates little evidence of aesthetic or historic significance as a representative Post War 1950s warehouse building. Additionally, there has been no indication that the subject building has any social significance to the local area. The subject building was developed around 1954-5 following the demolition of residential dwellings that occurred between 1938 and 1953. The subject site adjoins to an eight storey commercial building and is predominantly surrounded by residential homes. Additionally, it is in close proximity to an Islamic mosque. The proposed development is deemed appropriate, given the location and context of its surrounding streetscape. Its form, bulk and scale will be sympathetic to the area and will not detract the historical significance of the conservation area. The proposed works have been assessed against the relevant controls of the South Sydney LEP 1998 and the City of Sydney Heritage DCP 2006. The proposed works for demolition of the existing building, for a six storey mixed use building, will be sympathetic to the Commonwealth Street streetscape and Reservoir and Fosterville Conservation Area. 26With the benefit of the site inspection, I am satisfied that the HIS satisfactorily addresses the heritage significance of the building, its location in a Conservation Area and the form of the proposed building in this context. The fact that the HIS addresses a building of greater height and floor space adds support to the conclusion that there are no heritage reasons why the development application should be refused. 27I accept that the proposal satisfies the objectives in cl 3.9 of DCP 2012. Overshadowing 28Overshadowing was also a matter raised regularly by the residents and was the subject of additional overshadowing diagrams on 1 May 2013. Ms McNamara and Mr Betros reviewed the additional overshadowing diagrams and agreed the limited additional overshadowing was acceptable. The joint report states: A review of the overshadowing diagrams provided in association with the most recent set of drawings (now the subject of this appeal), indicate that here is only 1 dwelling that would not meet the above mentioned solar access provisions, namely, No.22 Batman Lane. The living room of this dwelling receives only 30minutes of sunlight between 2:30pm and 3:00pm during the winter solstice. It is acknowledged that protecting this small amount of solar access during the winter solstice would necessitate a building no more than 6 meters (setback 9.83 metres from the eastern boundary) which is not considered a viable option for any redevelopment of this site either for residential or commercial. Notwithstanding this, the applicant has amended Level 04 by 'cutting back' the south eastern corner to ensure that prior to the vernal equinox (or after the autumnal equinox), No 22 Batman Lane will receive solar access to its living room between 2pm and 3pm. The Planning Principle from Parsonage v Ku-ring-gai (2004) NSW LEC 347 regarding solar access, is a relevant consideration in this instance, which states that 'at higher densities sunlight is harder to protect and the claim to retain it is not as strong.' The site and its surrounds are considered to be high density, and with this in mind attempting to protect the limited amount of sunlight No. 22 Batman Lane receives during the winter solstice would be very difficult. It should be noted; however, that the loss of solar access is limited to this time of year only with solar access maintained either side of the winter solstice. On balance, it is considered that the amended proposal retains amenity to surrounding properties in regard to the visual presentation of the building, both from Commonwealth Street and from Batman Lane. Importantly, the degree of shadow impact has been minimised by the amended plans to the extent that shadow impacts are limited to a sole terrace at 22 Batman Lane. 29I agree with the conclusions of Ms McNamara and Mr Betros. Loss of privacy 30A loss of privacy was potentially seen to occur to the terraces that face Batman Lane, the rear private courtyards of 156, 158 and 160 Commonwealth Street and the rear of 77 to 81 Reservoir Street. 31Mr Betros states that any potential overlooking has been addressed through the relocation of all living areas above ground level to the Commonwealth Street frontage with only bedrooms on the eastern elevation. This ensures that there are no adverse visual or acoustic impacts for adjoining residential properties, including the terraces in Batman Lane. When combined with the proposed deep soil landscaping along the eastern boundary, there will be no adverse amenity impacts for local residents. Ms McNamara agrees with approach adopted by Mr Betros. 32I am satisfied that the allocation of bedrooms to the eastern elevation, and not living rooms is an appropriate response to any potential overlooking issues to the residential properties to the east. It is generally accepted that overlooking from bedrooms does not have the same level of impact, as living rooms because of the limited use of these rooms. I also accept that the proposed new wall on the eastern boundary of the site with a maximum height around 3 m, that replaces the eastern wall of the existing factory will not create any new loss of privacy issues given the proposed landscaping and setbacks to the proposed building. 33When combined with the proposed deep soil landscaping, the substantial building setbacks to Batman Lane and the relatively dense form of development in the area; I agree that any potential overlooking has been minimised to an acceptable level. Potential structural damage during construction and flooding of carpark. 34Potential structural damage during construction is addressed in condition 72 through the requirement for a Dilapidation Report and potential flooding of the carpark has been addressed in the additional plans to the satisfaction of council. Orders 35The orders of the Court are: 1. The appeal is upheld. 2. Development application D/2012/1669 for the demolition of an existing warehouse and the construction of a mixed use development at 144-154 Commonwealth Street, Surry Hills is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A and 9. _____________ 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: 04 June 2013