Barrett Bowyangs Pty Ltd v Leichhardt Municipal Council

[1999] NSWLEC 116

Land and Environment Court

of New South Wales

CITATION:

Barrett Bowyangs Pty Ltd & Anor v Leichhardt Municipal Council [1999] NSWLEC 116

PARTIES

Applicants:
Barrett Bowyangs Pty Ltd & Anor

Repsondent:
Leichhardt Municipal Council

NUMBER:

10705 of 1998

CORAM:

Talbot J with Commissioner Brown

KEY ISSUES:

Development :- adaptive reuse of existing industrial building for residential use

LEGISLATION CITED:

DATES OF HEARING:

05/17/1999; 05/18/1999

DATE OF JUDGMENT DELIVERY:

05/19/1999

LEGAL REPRESENTATIVES:

Applicants:
Mr C W McEwen (Barrister)

Solicitors:
Thomas Booler & Co

Respondent:
Ms C Schofield (Solicitor)

Solicitors:
Pike Pike & Fenwick

JUDGMENT:

Contents	Paragraphs
Planning issues and merit considerations	15 - 56
Determination	57 - 63
Orders	64 - 65

IN THE LAND AND Matter No. 10705 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES With: Brown C
Decision Date: 19 May, 1999


Barrett Bowyangs Pty Ltd and Bruce Hawker Constructions Pty Ltd
Applicants

v
Leichhardt Municipal Council

Respondent

REASONS FOR JUDGMENT


1. This appeal relates to a proposal to convert an existing two storey industrial building located on the eastern side of Wells Street, Annandale to a residential development comprising eight two bedroom units and car parking for ten vehicles.

2. The subject site is zoned residential 2(b2) under Leichhardt LEP No 20 and is within a Heritage Conservation Area.

3. The relevant objectives of the LEP state that:-

(a)(ii) Residential 2(b2) zoning, with a notional population density of 175 persons per hectare, is the basic residential zone applying to the Municipality and is designed to encourage two-storey construction compatible with existing development;
…

(c)(iii) in the case of conservation area (being those areas of the Municipality which have distinctive historic and townscape qualities that should be preserved and which have been identified as conservation area) development consent will be required for demolition and for the carrying out of both structural and non-structural work where the work will be publicly visible, and these areas will be subject to a wall height of 7.2 metres (or the wall height of any higher building designated by the Council).


4. The development is permissible within the zone as a residential flat building.

5. Pursuant to cl 10 of the LEP, the council shall not consent to the erection of a residential flat building unless the minimum site and landscaped areas for small, medium and large dwellings are provided as follows:-

Column I	Column II	Column III
Zone	Minimum site area (in m2) required for each - (a) large (b) medium; and (c) small dwelling within the building.	Minimum landscaped area (in m2) required for each - (d) large (e) medium; and (f) small dwelling within the building.
2(b2)	(g) 190 (h) 135 (i) 100	(j) 80 (k) 55 (l) 40


6. The minimum site area required under the LEP is 1410 m ² and the minimum landscaped area required is 590 m ² .

7. The site area is 802 m ² (58 per cent) and it is proposed to provide a total area of 280.3 m ² (47.5 per cent) equivalent to landscaping. The council recognises that it is impracticable to provide landscaping in the conventional sense as defined in the LEP because the existing building occupies the whole site from boundary to boundary. The areas adopted for this purpose comprise balconies and courtyards within the individual units.

8. The 1998 draft LEP prescribes in cl 4.3.1 for 40 per cent of a site to be landscaped and a floor space ratio (FSR) of 0.6:1. The proposal has a FSR of 0.953:1. However, where a proposal involves the adaptive reuse of an existing industrial building, cl 4.3.4 of the draft LEP sets a number of guidelines to be complied with. According to the council, at least five of these will not be satisfied. There is no indication that the making of the LEP is imminent.

9. An objection pursuant to SEPP 1 has been submitted in support of the proposal to provide less than the prescribed minimum site area and landscaped area. The issue is not whether an objection should be allowed, but rather the extent of non-compliance that should be tolerated.

10. Mr McEwen, appearing for the applicants, pursued an argument that the adaptive reuse or recycling of a building does not involve the erection of a building. This argument takes no account of the real extent of the structural building work involved. Although superficially the completed proposal will maintain the existing envelope, the interior will be entirely rebuilt. In planning terms the proposal involves the erection of a residential flat building using the fundamental component parts of an existing industrial building. Even if that is not right, the same considerations will arise if the building is to be assessed on its merits. The Court will proceed on the basis that cl 10 of the LEP applies.

11. Leichhardt DCP No 6 - Interim Parking Policy applies to the site.

12. DCP 6 provides that one to two on site car parking spaces are required per dwelling in a residential flat building depending on on site opportunities and local on street parking conditions. Additionally the provision of a minimum of one visitor space per five dwellings is required. The council’s argument is that, based on the size of the proposed dwellings, it is considered that one space be provided for the smallest units and two spaces should be provided for the remaining six units, thereby demanding a total of 16 on site spaces including two visitor spaces.

13. On the other hand, the applicants contend that the development is required to provide between eight and 16 resident car spaces and one or two visitor spaces. After taking into account the removal of the driveway to the existing loading dock in the building and having regard to the alleged reasonable opportunity to utilise on street spaces in the locality, the applicants say that the proposal complies with DCP No 6 by providing 10 car parking spaces including two spaces for visitors.

14. Other issues relate to poor solar access and inadequate ventilation within the individual units.

Planning issues and merit consideration

15. It was common ground that the proposal does not satisfy the requirements of cl 10 of LEP 20 in terms of density and landscaped area.

16. Mr Michael Watson, the council town planner, saw the departure from the standard as being inappropriate, particularly based on the existing development in the vicinity even allowing some latitude for the reuse of an existing building.

17. Mr Gary Shiels, the applicants’ consultant town planner, maintains that it is unreasonable to require a development which seeks to reuse an existing building to comply with the density provisions that would normally relate to the construction of a new dwelling. In his view, the reuse of the building will not have any significant adverse effects on neighbours and will substantially improve the appearance of the building.

18. In terms of the landscape requirements, cl 10 requires the provision of 590m ² for the proposal. Mr Watson, in his assessment, includes the balcony areas of each unit and, together with the courtyards, concludes that the proposal is deficient as less than 50 per cent of the requirement is provided. In qualitative terms, the areas available were also questioned by Mr Watson.

19. Mr Shiels’ position in relation to landscaping was similar to that taken on the density issue, being a reliance on the reuse of the building as distinct from the erection of a new building. The basis of the SEPP 1 objection is the reuse of the existing building, consistency with the zone objectives and the lack of impact on surrounding properties.

20. In terms of the SEPP 1 objection, it is generally appropriate to test the objection against the specific objectives of the standard. In this case, cl 10 does not specify any objectives, although Ms Schofield, in her submissions on behalf of the council, referred to the particular impact the increased density and lack of landscaping would have on matters such as solar access, ventilation and acoustic privacy. Mr Watson maintained that the impacts were unacceptable and the SEPP 1 objection should not be upheld.

21. The Court is not convinced that the respondent’s approach is entirely correct. While the impacts identified by Mr Watson are relevant, they are separately addressed in the many council planning controls that affect the site.

22. It has been the experience of the Court that the objectives of density controls generally relate to the control of the size of the development and specifically to the issues of bulk and scale. Similarly, controls in terms of landscaped area relate to the provision of communal recreation space while providing opportunities for the provision of planting to contribute to the ‘greening’ of an area.

23. In this particular case, the council clearly, through the evidence of Mr Watson and the specific requirement of its draft LEP and draft DCP, seeks the retention of the fabric of the building. This fabric extends to all boundaries of the site and to a height exceeding what would normally be expected of a two storey residential building.

24. In terms of landscaping (and strictly in accordance with cl 10) strict compliance would require the demolition of at least part of the building.

25. On the question of density, Mr Watson advocated a reduced number of units which, in his view, could improve the internal amenity of the units by increasing the opportunity for solar access and ventilation. When pressed on this, he indicated that a better design would incorporate a central atrium that would allow both morning and afternoon sun to all of the units. He also believes that a reduction in the number of units would reduce other potential impact such as overlooking and on street parking.

26. Accepting the council’s desire to maintain the existing building, and putting aside the impacts that may flow from eight units compared to Mr Watson’s reduced number, the Court can see no reason why the proposal would not be acceptable. The form of the building is in place and will not change with the number of units placed within its walls. The Court accepts that a greater number of units may bring additional impacts, but these should be assessed independently of the question of density.

27. The Court is also mindful that the current thinking of the council, manifested through the council adopted draft LEP, effectively moves away from any rigid numerical assessment to a more qualitative assessment for reuse of industrial buildings. For reasons outlined later in this judgment, the proposal is also satisfactory in terms of this assessment.

28. On this basis the Court finds that strict compliance with the development standards in cl 10 of LEP 20 is unnecessary and unreasonable in this instance.

29. On the question of private open space, Mr Watson maintained that some of the areas were unacceptable in both quantitative and qualitative terms. There are no specific requirements for the provision of private open space within LEP 20. Both parties rely on the provisions of the draft DCP. Mr Watson states that the draft DCP requires a minimum of 35m ² for each dwelling. The specific control calls for the provision of 35 m ² at ground level and, where no ground level access is available, a minimum area of 8 m ² . Adopting 35 m ² as the standard throughout, he says only units 3, 5 and 6 are provided with sufficient area, although units 2 and 4 come close to complying with this requirement.

30. Furthermore, in qualitative terms, he suggests that the spaces to the rear are compromised due to conflicting demands of privacy and solar access, while the areas fronting Wells Street are compromised by poor privacy.

31. Mr Shiels, on the other hand, sees the areas as being acceptable, within the context of the reuse of the building. He also maintains that the proposal generally complies with the private open space requirement of the draft DCP.

32. Based on the draft DCP, the units that do not have access to ground level adequately satisfy the 8 m ² requirement.

33. There is some dispute as to what would be defined as private open space. In the Court’s view, the fact that an open space area might be covered to a certain extent does not necessarily exclude that area from being used for open space purposes. Accordingly, the Court accepts that the proposal is adequate in quantitative terms.

34. The Court does not place the same degree of concern on the utility of these areas as Mr Watson does. The eastern private open spaces at the rear will be enclosed by walls of either 1.6 metres of 1.8 metres in height. However, the Court accepts that there must be a reasonable balance between outlook and the protection of the privacy of adjoining properties.

35. At the Wells Street frontage, the Court agrees that the privacy of the occupants will be compromised to a certain extent by people walking or vehicular movements in Wells Street but not to the extent that it would prohibit these areas from being utilised. The existing houses in Wells Street generally have minimal setbacks and there is little difference, in terms of use of the front of these houses, to the use of the proposed balconies facing Wells Street.

36. Mr Watson stated that the proposal was deficient in provision of car parking. On his interpretation, DCP 6 would require the provision of 16 spaces, being one space for the smallest units, two spaces for each of the remaining units and two visitor spaces.

37. Mr Shiels maintains that the proposal complies with DCP 6 and provides an acceptable level of car parking based on the provision of one space for each unit and two visitor spaces, giving a total of ten spaces.

38. DCP 6 does not specify the exact amount of car parking but suggests that either one or two spaces should be provided, depending on an assessment of the on site opportunities and local on street parking conditions.

39. Evidence of car parking conditions in Wells Street was given by Ms Julia Thornthwaite, the owner but not the current resident of 6 Wells Street, Mr Rodney Gray of 16 Wells Street, Ms Carla Garrett of 5 Wells Street and Ms Jennifer Wilson, the owner but not the current resident of 9A Wells Street.

40. The general consensus of the residents was that parking was generally available during the day, but was at a premium in the evenings and at weekends. It was also generally agreed that on street parking made access along Wells Street difficult due to its narrow nature.

41. On the question of the adequacy of car parking, the Court prefers the evidence of Mr Shiels for a number of reasons. While the units are deemed to be ‘large’ by the council controls, they are nonetheless only two bedrooms. Reference was made to the approved development at 19 - 23 Wells Street where only one car parking space was required for each three bedroom unit. The reason, according to the council record, was based to some extent on the close availability of public transport.

42. Reference was also made to the council adopted draft DCP which reduced the car parking requirement from DCP 6 to a range between 0.8 and 1.6 spaces per two bedroom unit. The current proposal falls within the centre of this range.

43. The Court is also mindful that at least one on street car parking space will be reinstated with the closing of an existing access to the subject building.

44. Mr Watson also saw the proposal as being contrary to DCP 17 and the principles of ecologically sustainable development contained in the draft DCP in the areas of solar access and ventilation. In his opinion, the dwellings rely primarily on restricted direct access to the sun or skylights for solar access. Furthermore, the balcony walls restrict solar access. On his calculation four units do not comply with the requirement for two hours access to sunlight in mid winter in DCP 17. The other four are only marginally acceptable. If the three hour test in the draft DCP is applied, all units would fail.

45. Mr Shiels accepts the assessment of Mr Watson but argues that the east west orientation of the building mitigates against the ability to be able to satisfy the requirements of DCP 17 or the draft DCP. He states that every endeavour has been made to increase solar penetration and this has been adequately achieved by full height glass walls on the eastern and western elevations, the provision of dormer windows, skylights and glazing within the saw tooth roof structure.

46. The Court acknowledges that the solar penetration is not at an optimum level, but accepts the constraints identified by Mr Shiels. The measures proposed achieve the best available level of solar penetration to the units in the circumstances.

47. Mr Watson also raised the question of ventilation. He regarded the design as being unacceptable in that regard. Mr Shiels, takes the opposite view and maintains that the proposal is adequate and satisfies the requirements of the DCP which demands an aggregate opening or openable size of not less that five per cent of the floor area of the room. Mr Shiels calculates that the provision is in the vicinity of 15 per cent.

48. Mr Watson rejects this assessment on the basis that, in his opinion, the proposed ventilation is not effective because, in some cases, it needs to be dispersed over three levels.

49. The Court adopts Mr Shiels opinion in regard to the adequacy of ventilation and compliance with the requirements of DCP 17 in that respect.

50. The potential for loss of privacy from overlooking was raised by the council and the adjoining owner, Ms Wilson. The applicants originally proposed the erection of 1.8 metre high walls to all balconies. However, during submissions, Mr McEwen asked the Court to consider a reduction in the height of the walls of the upper level balconies along the eastern elevation to 1.6 metres.

51. With the benefit of a view of the building and surrounding area, an appreciation of the difference between the two heights could be obtained. While Mr Watson pursued the 1.8 metre height on the upper balconies, he conceded that a reduction would increase solar penetration but at the cost of potential loss of privacy for the adjoining residents.

52. The area is relatively dense with most houses close to or on the boundary of their properties. The Court does not see the relationship between the proposed units and the adjoining properties as being markedly different in any relevant respect to the existing relationship between existing buildings in the area.

53. The council raised the issue of the impact on the streetscape. The concern was essentially related to the proposed metal bi-fold louvre panels on the window openings. It is alleged this feature is uncharacteristic of the area and therefore not acceptable.

54. The applicants provided more specific details of the type of panels proposed supported by photographs of buildings where they had been used.

55. It is difficult to determine what is characteristic of the area other than a mixture of building types predominantly used for residential purposes. In the Court’s view, the louvres described are not inconsistent with the adaptive reuse of an old industrial building as a residential flat building. There is no realistic opportunity to set the frontage of the building back from the street alignment to allow a more aesthetic approach.

56. Clause 17 of LEP 20 requires an assessment of the effect on the historic, scientific, cultural, social, architectural or aesthetic appearance of the building. No issue was raised by the council in this respect and the Court agrees that the matters mentioned in cl 17 do not restrict the redevelopment of the building.

Determination

57. Having regard to the whole of the evidence, the Court is satisfied that, subject to the conditions and incorporation of some suggestions relating to balcony wall heights made during the course of the hearing to meet council’s concerns, the proposal for the building is a reasonable adaptation of the existing industrial building. Although in many respects it will contrast with the smaller individual residential developments generally in an older style in its immediate vicinity, nevertheless it is not out of character with the other development in the neighbourhood which presents as an eclectic mix of various types of development, including other industrial buildings which have been put to an adaptive reuse, as well as entirely new developments of residential flat buildings.

58. The residential accommodation within the building is not set at an optimum level, however the Court believes that the design takes what little advantage is available for solar access and ventilation in the context of the orientation of this building which faces either due east or due west, with the northern and southern sections closed off by brick walls. It is not likely that anything beyond marginal improvement, if any, could be achieved by increasing the area of private open space or designing an atrium or other provision for solar access through the centre of the building as suggested by council’s town planner.

59. The council and the objectors raised the legitimate concern about the crowded nature of the street and the difficulties created by the lack of on site parking generally which create overflows into the street. However, for the reasons already outlined, the Court believes that saturation point has not yet been reached in the street, but in any event, there is adequate parking provided on site and the prospect of overflow into the street is minimal from time to time, but certainly not on a regular basis.

60. There has been a lot of discussion regarding balcony wall heights. The Court had an opportunity to appreciate this issue during a comprehensive view of the site. As already indicated, it is appropriate to maintain a higher wall height at the lower level balconies in the order of 1.8 metres. On the other hand, although there may be some prospect of overlooking adjoining properties from the upper levels, there is nevertheless a need to balance the amenity of the upper level balconies to give some prospect of a view and to provide for the maximum opportunity to capture sunlight and to allow better ventilation into the upper part of the units. On that balance, it is the Court’s opinion that the balcony heights should be 1.6 metres at the upper level, along the eastern side of the building, with 1.8 metres at the northern and southern extremities.

61. Having regard to the Court’s findings in relation to the site area and the amount of so-called open space provided, although, again, not at the optimum level, given the constraints of the site and the existing structure and the primary aim of the council to encourage the adaptive reuse of existing industrial buildings, it is appropriate that the SEPP 1 objection in relation to site area and landscaping be allowed.

62. The Court’s determination which leads to an approval pays due regard to the present planning objectives of council to encourage recycling of this type of building as reflected in particular by the provisions of the draft LEP and DCP. In order to achieve this presumably laudable objective, it may, in particular cases, become necessary to accept some sacrifices of other more general aims expressed through standards and recommended controls set by various council instruments as the proposed reuse of this particular building demonstrates.

63. The Court acknowledges the valuable assistance and advice provided by Commissioner Brown.

Orders

64. Having regard to the approval being generally in the form proposed by the applicants, there is no real issue in respect of the conditions of consent. The Court has made some amendments and deletions to take account of the Court’s position.

65. The Court makes the following orders:-

1. Appeal upheld.

2. Development Application No 172/98 to convert an existing two storey industrial building into eight residential units with ten car spaces at 11 - 13 Wells Street, Annandale is determined by granting consent subject to the conditions attached.

3. The exhibits, except Exhibit A, may be returned.


Matter No. 10705 of 1998
Barrett Bowyangs Pty Ltd & Anor v Leichhardt M.C.
Conditions of Consent


1. This approval is to be regarded as being generally in accordance with the particulars and information set out and described in the Development Application registered in council’s records as DA 172/98 of 20 April 1998, and Plans Numbered DA01 - DA05 dated 16 March 1998, DA06 dated 18 March 1998 and DA07 dated 10 July 1998, all as amended on 27 January 1999, except where varied by any or all of the attached conditions.

2. Detailed plans and specifications of building work are to be submitted to council for determination in accordance with the building control provision of the Local Government Act 1993.

3. In accordance with the Phase 1 contamination report submitted with the application, all ground floor concrete slabs are to remain intact and no soil on the site is to be disturbed.

4. The perimeter of the ground and first floor courtyards and balconies on the eastern side of the building are to be enclosed by a solid masonry wall a minimum of 1.8 metres in height with the exception of the eastern walls of the first floor balconies which shall be a minimum of 1.6 metres in height.

5. The building application shall be accompanied by a list of:-

(a) The essential services that are currently installed in the building, and
(b) The essential services that are to be installed in the building in connection with the proposed structural alteration or change of use.
The list shall describe the extent and capability and the basis of design of each such service.


6. When submitting building plans, full details of mechanical ventilation or air conditioning systems for use in the building must accompany such plans.

7. The proposed residential building is to be insulated to achieve energy efficiency and thermal comfort. Insulation to the following R value standards is to be provided:-

(a) R1.5 for roofs and ceilings (combined value)
(b) R1.0 for walls
Details are to be included in the specification submitted with the building application.


8. Summer sun penetration into the north facing windows of the mezzanine bedrooms is to be minimised by the use of solar shading devices such as awnings, external venetians, eaves, overhangs or other similar devices. Details are to be submitted with the building application.

9. A solar water heater is to be installed for each of the eight units. The solar collector panels and storage tanks are to be located in a manner to minimise their visual impact. Details are to be submitted with the building application.

10. No rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings.

The Building Application is to specify the timbers proposed to be used.

11. An application must be made to council for the construction of all vehicular crossings and, where applicable, closure of redundant crossings. Upon receipt of advice from council of estimated cost of construction, pre-payment of same must be made in sufficient time to enable council to implement construction prior to completion of building.

12. The southern most kerb crossing is to be removed, and the kerb and channel, and the footpath reconstructed. The northern most kerb crossing is to be relocated to align with the proposed entrance to the ground floor and the kerb and channel and the footpath reinstated.

All work in this regard is to be undertaken at the expense of the applicant or successor, and is to be in accordance with council’s standard requirements.

13. Application is to be made to council’s engineer for the issue of a certificate fixing levels at the property alignment prior to commencement of building work.

14. A drainage diagram must be submitted to council providing for the collection and disposal of all roof water, sub-soil water and surface water and approval to the drainage diagram shall be obtained prior to the release of building plans. The drainage design for the site shall include a Gross Pollutant Trap System to the satisfaction of council, and this is to be installed at the applicant’s expense.

15. Provision is to be made within the subject property for ten (10) clearly marked vehicular parking spaces (including two (2) visitor spaces), each to be of minimum dimensions 5.5 x 2.5 metres.

16. A notice is to be clearly displayed at the Wells Street frontage to indicate that visitor parking is available within the property and the two visitor spaces within the building are to be clearly marked as such.

17. As far as practicable, all vehicles entering or leaving the subject property shall be directed to be driven in a forward direction.

18. All parking areas and associated driveways are to be paved and drained to the satisfaction of the Director, Council Operations.

19. Being satisfied that the proposed development will increase the demand for public amenities within the area, the council requires a monetary contribution of $93808 calculated in accordance with the Open Space and Recreation Contributions Plan towards the provision and/or improvement of public open space.

20. Being satisfied that the proposed development will increase the demand for public amenities within the area, the council requires a monetary contribution of $20717.04 calculated in accordance with the Community Facilities & Services Contributions Plan toward the provision and/or improvement of community facilities and services.

21. The Open Space and Recreation and the Community Facilities & Services contributions are to be paid before the release of building permit and stamped plans.

22. Demolition or construction work associated with the proposed development shall be carried out only between the hours of 7.00 am and 5.30 pm Monday to Friday inclusive, 7.00 am and 1.00 pm Saturday and must not be carried out on Sunday or Public Holidays. Debris and rubbish must be hosed down and kept damp to prevent dust nuisance, and no waste materials shall be burnt on the site.

Demolition must be carried out to Australian Standard AS2601-1991 Demolition Code.