Cracknell & Lonergan Architects v Marrickville Council

[2014] NSWLEC 1000

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000

Hearing dates:

21 November 2013

Decision date:

07 January 2014

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2. The development application for alterations and additions to an existing building for use as a boarding house with ground floor commercial at 19 Mary Street, Newtown, is refused.

3. The exhibits, except Exhibit 3, are returned.

Catchwords:

DEVELOPMENT APPLICATION: boarding house with ground floor retail. Compatibility with local area. Whether floor space ratio compliant and results in excessive bulk and scale.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Marrickville Local Environmental Plan 2011
State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

White v Parramatta City Council [2011] NSWLEC 1059.

Category:

Principal judgment

Parties:

Cracknell & Lonergan Architects (Applicants)

Marrickville Council (Respondent)

Representation:

Counsel
Mr M Seymour (Respondent)
Solicitors
Mr G Green of Pikes & Verekers (Applicant)
Mr J Strati, Principal solicitor Marrickville Council (Respondent)

File Number(s):

10569 of 2013

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Marrickville Council (council) of Development Application No. 201300142 for alterations and additions to an existing building for use as a boarding house with ground floor commercial at 19 Mary Street, Newtown (site).

1. The contentions pressed by council in the Amended Statement of Facts and Contentions are whether the proposed development:

i. is of excessive bulk and scale;

ii. has unacceptable negative effects on the heritage significance of the heritage conservation area (HCA) and heritage items in the vicinity;

iii. unacceptably overshadows 17 Mary Street;

iv. is incompatible with the character of the local area;

v. will result in unacceptable amenity impacts on 17 Mary Street and safety and amenity impacts on the occupants of the boarding house.

The site and locality

1. The site is on located on the corner of Lennox Street and Mary Street. It has a site area of 210.9sqm and is occupied by a single storey industrial building. The locality is predominantly one and two storey residential development with the exception of the Dendy Cinema, which adjoins the site to the east in Lennox Street and the Telstra building which is diagonally opposite the site in Mary Street. Adjoining the site to the south is a single storey residential dwelling (17 Mary Street). To the north is the Camperdown Memorial Rest Park, which contains St Stephens Church and cemetery. A row of single storey attached dwellings (38-84 Lennox Street) is opposite the site to the west. The King Street commercial area is to the south of the site at the end of Mary Street.

Background and proposal

1. The development application was lodged on 5 April 2013 to demolish part of the existing building and carry out alterations and additions to create a five storey, over basement level, development containing a basement laundry and storage area, a ground floor containing a commercial tenancy, communal living area, waste storage areas and stacked parking for four vehicles, with upper levels containing a 20 (self contained) room boarding house (Original Application). Council refused the Original Application on 13 August 2013.

1. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) was held on 11 September 2013. The parties did not reach agreement and the conciliation conference was terminated. The parties agreed to my hearing the matter under s 34(4)(b)(i) and that the site view and objector and expert discussions on site could be evidence in the proceedings. The applicant subsequently prepared amended plans, which were renotified.

1. At the hearing the applicant sought and was granted leave to rely on the amended plans. Council did not oppose the granting of leave. The amended application seeks approval to demolish part of the existing building and carry out alterations and additions to create a five storey development containing a ground floor commercial tenancy, four motor cycle and four bicycle parking spaces, waste storage areas and landscaping, with upper levels containing a boarding house with 16 self contained rooms (Amended Application).

1. The works to the existing building include the demolition of the roof and construction of new openings along the Mary Street and Lennox Street frontages.

1. Each of the 16 rooms within the boarding house will provide an open plan kitchen, living and bedroom area with a separate bathroom and a 7.3sqm north facing balcony. One of the proposed boarding rooms will be adaptable.

1. The proposal also includes the installation of a perforated metal screen, which covers the second and third floors and part of the fourth floor on the Mary Street and Lennox Street elevation. A landscaped "green wall" is proposed on the southern elevation of the first to fourth floors adjoining the external access way to the rooms.

Planning controls

1. The site is zoned B2 Local Centre under Marrickville Local Environmental Plan 2011 (LEP). The proposed development is permissible with consent. Clause 3.2 requires that the consent authority must have regard to the objectives for development in the zone. The objectives of the B2 - Local Centre zone are:

· To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

· To encourage employment opportunities in accessible locations.

· To maximise public transport patronage and encourage walking and cycling.

· To provide housing attached to permissible non-residential uses which is of a type and scale commensurate with the accessibility and function of the centre or area.

· To provide for spaces, at street level, which are of a size and configuration suitable for land uses which generate active street-fronts.

· To constrain parking and reduce car use.

1. The site is within the North Kingston Estate Heritage Conservation Area (HCA). The terraces opposite the site (38-84 Lennox Street) and St Stephens Church and Cemetery are listed as heritage items under the LEP. Clause 5.10(4) requires that the consent authority must consider the effect of the development on the heritage significance of the HCA.

1. Under cl 4.3 the development is not to exceed the maximum height of 14m specified in the Height of Building Map. Under cl 4.4 the development is not to exceed the maximum floor space ratio (FSR) of 1.5:1 specified in the FSR Map. Clause 4.5 provides for the calculation of FSR, which relies on the definition of Gross Floor Area (GFA) in the Dictionary of the LEP.

1. The parties disagree on the FSR of the proposal and whether a request for an exemption to the standard under cl 4.6 is required, which is discussed later.

1. The primary planning instrument for the assessment of the application is State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The aims of the SEPP in cl 3 are:

3 Aims of Policy

The aims of this Policy are as follows:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

1. Clause 8 of SEPP ARH states:

8 Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

1. Part 2 Division 3 of SEPP ARH provides provisions for boarding houses that apply to the site (cl 26) and to the development (cl 27), which is permissible with development consent (cl 28). Clause 29 includes standards that cannot be used to refuse consent, including density or scale in cl 29(1), which relevantly provides:

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

......

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register-the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

.....

1. Clause 29(2) includes further standards on which consent cannot be refused and cl 30 provides standards that must be satisfied before consent can be granted. Clause 30A provides:

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

1. The parties did not raise issues with the standards in cl 29 (2) or cl 30 but disagree on whether the FSR standard on which consent must not be refused is 1.5:1 based on cl 29(1)(a) or 2:1 based on cl 29(1)(c). This disagreement centred on whether a residential flat building is permissible within the B2 Local Centre Zone under the LEP. The parties also disagree on the GFA of the development and, consequently its FSR. Furthermore, they had different interpretations of cl 29 (4) and whether an exception under cl 4.6 to the FSR standard is required and, if so, whether the requirements of the clause are satisfied. The parties also disagree on whether cl 30A is met. These matters are discussed later in the Judgment.

1. Marrickville Development Control Plan 2011 (DCP) is also relevant. The DCP includes generic provisions for acoustic and visual privacy (Part 2.6) and solar access and overshadowing (Part 2.7) and controls for commercial and mixed use development (Part 5) and heritage (Part 8), including s 8.2.13 which applies to the North Kingston Estate (Camperdown-Newtown) HCA.

The evidence

1. The Court visited the site and surrounding area as part of the conciliation conference and heard evidence from objectors whose main concerns were that the development was an overdevelopment of the site, which would involve extensive demolition of an existing contributory building and would impact on the HCA, the heritage items and 17 Mary Street. The owners of 17 Mary Street stated that their rear courtyard and living areas were already adversely impacted by the height of the Dendy building and would be further enclosed by the proposal and result in severe loss of amenity from the bulk, total loss of winter solar access and the adequacy of the "green wall" in mitigating privacy impacts.

1. The Court heard expert planning evidence from Mr W Nino, for the applicant, and Mr J Groundwater, for the council. Mr S King, for the applicant, provided expert evidence on solar access to 17 Mary Street. Expert heritage evidence was provided by Mr R Staas, for the applicant, and Ms K Napier, for the council.

Floor space ratio

1. Mr Nino estimates the FSR of the proposed development to be 1.99:1, whereas Mr Groundwater's figure is 3.24:1. This difference results from the inclusion or exclusion of different areas as GFA, as shown in Exhibit 5, Annexure 6a (Mr Groundwater's calculation) and Annexure 6b (Mr Nino's calculation).

1. Based on his interpretation of the definition of GFA in the LEP, Mr Groundwater includes:

• the balconies on the second and third floor and the access corridors on the southern elevation as they are enclosed by a "green wall" and perforated metal screen which are outer walls that are greater in height than 1.4m.
• motor cycle and bicycle parking and access thereto as it is not car parking to meet any requirements of the consent authority
• the garbage and loading areas as they are not in a basement

1. Mr Nino excluded these areas from GFA as the balconies are not enclosed by walls, the access corridors are open corridors/lobby areas for each level; the motor cycle and bicycle spaces are parking and include access to the parking, loading/unloading and garbage.

1. Mr Nino and Mr Groundwater also held different opinions about the eligibility of the site for the "bonus FSR" under cl 29(1)(c) and the interpretation of cl 29(4). Their evidence reflected the submissions of the parties, which are discussed below.

1. Regardless of whether or not the proposal complies with the numerical FSR controls, Mr Nino considered that the bulk and density was consistent with the existing and desired future character sought for the area and that the building did not result in adverse amenity impacts. In particular, he noted that the building height complied with the 14m control and was compatible with the height and scale of nearby terraces, the Dendy Cinema and the Telstra Building.

1. Mr Groundwater held the contrary view that the bulk and density of the proposal was excessive and not compatible with the HCA. In his opinion, the loss of solar access to 17 Mary Street was unacceptable and the proposal did not achieve acceptable privacy impacts due to its reliance on the "green wall".

1. Mr King's evidence is that an increase in the height of the existing building on the southern boundary of more than 800mm to 1200mm would result in the complete loss of winter solar access to the courtyard and north facing windows of 17 Mary Street as indicated in the envelope prepared by Ms Napier (Exhibit 5, Annexure 3). Although he acknowledged that the height of the Mary Street part of the site could be higher than this envelope and retain some solar access. He did not consider it reasonable to reduce the FSR of the development to retain solar access to 17 Mary Street as he understood this would limit the development potential of the site envisaged by the zoning.

Submissions

1. Mr Green, for the applicant, submits that the site is eligible for the "bonus" FSR under cl 29(1)(c) of SEPP ARH as although "residential accommodation" is expressly prohibited in the land use table for the B2 Local Centre zone, "Shop top housing" is expressly permitted. "Shop top housing is defined in the LEP as:

Shop top housing means one or more dwellings located above ground floor retail premises or business premises.

Note. Shop top housing is a type of residential accommodation - see definition of that term in this dictionary.

1. Residential flat building is defined in the LEP as:

Residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing.

Note. Residential flat buildings are a type of residential accommodation - see definition of that term in this dictionary.

1. Mr Green submits that a building containing 3 or more dwellings above ground floor retail premises or business premises is both a "residential flat building" and "shop top housing" because:

• "Shop top housing" includes a particular type of "residential flat building".
• The definitions are not mutually exclusive
• "Residential flat building" is not separately listed in the zoning table and is therefore not excluded from the definition of "shop top housing by cl 2.3(3)(b) of the LEP.

1. Mr Green concludes that residential flat buildings with ground floor retail or business premises are permissible within the zone and therefore cl 29(1)(c) of SEPP ARH applies and the deemed to comply FSR control is 2:1 (1.5:1 in the LEP plus additional 0.5:1).

1. Mr Green submits that even if cl 29(1)(a) applies, the proposed FSR is 1.99:1, which given the size of the site does not result in a significant increase in GFA or additional impacts. In his submission, under cl 29(4) of SEPP ARH, a FSR which exceeds either cl 29(1)(a) or (c) can be approved without a request under cl 4.6 of the LEP for an exemption to the standard. Clause 4.6 would be inconsistent with the requirements of SEPP ARH, which prevail under cl 8. In his submission, a similar approach was taken by Brown C in White v Parramatta City Council [2011] NSWLEC 1059. Although not required, the cl 4.6 Request prepared by Mr Nino for the Original Application (cl 4.6 Request) justifies that compliance with the FSR standard is unreasonable and unnecessary in the circumstances of the case.

1. Mr Seymour, for the council, submits that the development cannot be both a "residential flat building" and "shop top housing" which would be contrary to clause 2.3(3)(b) of the LEP. A "residential flat building" and "shop top housing" are separately defined and are both types of "residential accommodation", which is expressly prohibited in the land use table. However, "shop top housing" is listed as a permissible use in the zoning table, whereas a "residential flat building" is not expressly listed and is not permissible as an innominate use due to the inclusion of "residential accommodation" as a prohibited use in the land use table.

1. Mr Seymour accepts that under cl 29(4) approval can be granted to a development that exceeds the FSR in the deemed to comply provision of cl 29(1)(a). However, the additional FSR must be assessed under s79C and the LEP is a relevant consideration. There is no inconsistency between SEPP ARH and cl 4.6 of the LEP, which remains a precondition to granting development consent. Mr Seymour submits that even if Mr Nino's FSR of 1.99:1 is accepted, the proposal significantly exceeds the FSR standard and is not compatible with the existing and desired future character of the area.

Findings

1. Clause 2.3(1) of the LEP provides that the Land Use Table for each zone specifies

(a) the objectives for development, and

(b) development that may be carried out without development consent, and

(c) development that may be carried out only with development consent, and

(d) development that is prohibited.

1. Clause 2.3(3) provides:

(3) In the Land Use Table at the end of this Part:

(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

1. The Land Use Table for Zone B2 Local Centre provides:

2 Permitted without consent

Home occupations

3 Permitted with consent

Boarding houses; Child care centres; Commercial premises; Community facilities; Educational establishments; Entertainment facilities; Function centres; Hostels; Information and education facilities; Medical centres; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Roads; Service stations; Shop top housing; Tourist and visitor accommodation; Any other development not specified in item 2 or 4

4 Prohibited

Agriculture; Air transport facilities; Airstrips; Animal boarding or training establishments; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Port facilities; Recreation facilities (major); Residential accommodation; Rural industries; Sewerage systems; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste or resource management facilities; Water recreation structures; Water supply systems; Wharf or boating facilities

1. "Residential accommodation" is defined in the LEP as:

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following:

(a) attached dwellings,

(b) boarding houses,

(c) dual occupancies,

(d) dwelling houses,

(e) group homes,

(f) hostels,

(g) multi dwelling housing,

(h) residential flat buildings,

(i) rural workers' dwellings,

(j) secondary dwellings,

(k) semi-detached dwellings,

(l) seniors housing,

(m) shop top housing,

but does not include tourist and visitor accommodation or caravan parks.

1. Development for the purpose of "residential accommodation" is expressly prohibited within the B2 Local Centre Zone. However, specific types of residential accommodation, such as "boarding houses" and "shop top housing" are referred to separately in the Land Use Table as being permissible with consent. Development for the purpose of a "residential flat building" is not referred to separately and is therefore not expressly permissible with consent.

1. I do not accept Mr Green's submission that "shop top housing" includes a particular type of residential flat building and consequently is permissible in the B2 Local Centre zone as "shop top housing" is permissible. "Residential flat building" and "shop top housing" are separately defined uses and while there are similarities in that they both are for the purpose dwellings, "shop top housing" only permits such dwellings in association with ground floor retail or business premises. A dwelling in "shop top housing" is therefore different in its purpose to a dwelling in a "residential flat building".

1. A "residential flat building" is not permissible in the B2 Local Centre zone under the LEP and consequently cl 29(1)(c) of SEPP ARH does not apply. Consent must therefore not be refused on the grounds of density and scale if the FSR is not more than 1.5:1 in accordance with cl 29(1)(a) of SEPP ARH.

1. The planners held different opinions as to the FSR of the development based on the inclusion or exclusion of areas as GFA. Mr Nino estimates the FSR to be 1.99:1 and Mr Groundwater figure is 3.24:1.

1. GFA is defined in the Dictionary of the LEP as:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a) the area of a mezzanine, and

(b) habitable rooms in a basement or an attic, and

(c) any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes:

(d) any area for common vertical circulation, such as lifts and stairs, and

(e) any basement:

(i) storage, and

(ii) vehicular access, loading areas, garbage and services, and

(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g) car parking to meet any requirements of the consent authority (including access to that car parking), and

(h) any space used for the loading or unloading of goods (including access to it), and

(i) terraces and balconies with outer walls less than 1.4 metres high, and

(j) voids above a floor at the level of a storey or storey above.

1. For the reasons put forward by Mr Groundwater, I accept that as the garbage and its loading areas are not in a basement they are therefore not areas to be excluded from GFA based on its definition.

1. The perforated metal screen on the second and third floors forms an "outer wall" to the balconies, which is greater than 1.4m high and these areas therefore are not excluded from GFA. The screen while considered acceptable by the experts, would reduce amenity by enclosing these balconies and units and reducing the north facing views to the park and solar access. Similarly, the "green wall" would form the external wall of the building and the access ways are not excluded from GFA. While the green wall will soften the external appearance of the building, the internal amenity of the access walkways may be reduced given that the wall is required to prevent overlooking of the adjoining property and consequently, as designed it presents as a solid screen with no outlook and filtered south facing light.

1. SEPP ARH requires parking spaces to be provided for motorbike and bicycle parking. These spaces and their access could therefore be excluded from GFA.

1. Although the exact FSR of the proposal is unclear, I accept that the figure is closer to the estimate of Mr Groundwater.

1. Regardless of which FSR figure is used, the proposal exceeds the maximum FSR of 1.5:1 in cl 4.4 of the LEP and consequently the deemed to comply provision in cl 29(1)(a) of SEPP ARH on which consent must not be refused. I accept Mr Seymour's submission, that a request for an exemption to the FSR standard pursuant to cl 4.6 of the LEP is required as there is no inconsistency with the requirements of cl 4.6 and those of SEPP ARH. Even if I am wrong in this conclusion, cl 30A of SEPP ARH requires a consideration of whether the design of the development is compatible with the character of the local area and the density and scale of the development would be relevant to this consideration.

Is the design of the development compatible with the character of the local area?

1. The experts agree that the local area is principally the visual catchment, which includes the Dendy and the Telstra buildings, although they are excluded from the HCA. Mr Nino placed considerable weight on the presence of these buildings in establishing the existing character of the area which he described as:

An area of a mixed use character that includes various commercial buildings, a carpark building and one and two storey dwellings....it is inappropriate to characterise the area as predominantly being 1 and 2 storey dwellings and...there is no overriding character for this area....the proposal is capable of sitting harmoniously with adjacent buildings and is of a built form that is compatible to adjacent buildings....the proposal is of the same bulk, scale and height as the adjoining Dendy Cinema building and is of a comparable height to the Telstra building.

1. In Mr Nino's opinion, the desired future character for the block bounded by King Street, Mary Street, Lennox Street and Church Street is established by the 14m height limit and FSR of 1.5:1 which envisages four storey mixed use buildings. He concluded that the built form of the proposal is consistent with this desired future character.

1. Mr Groundwater considered that, with the exception of the Dendy and the Telstra buildings, the character of the area is predominantly low scale one and two storey residential development, which is unlikely to change given that it is a conservation area and near a number of heritage items and contributory buildings. He stated that the Dendy and Telstra buildings had been:

specifically and purposefully excluded from the North Kingston Heritage Conservation Area due to their intrusive and anomalous nature in comparison to other forms of development in the immediate area. Replicating the form and massing of these developments is inconsistent with the desired future character of the area.

1. Mr Staas and Ms Napier held different opinions about the proposal's impact on the significance of the conservation area and heritage items in the vicinity. This difference of opinion centred on the proposal's response to the Dendy building. Mr Staas considered that the proposal would screen the blank western wall of the Dendy building and reduce its impact on the HCA. Furthermore, it would form an appropriate transition between the Dendy and the heritage items in Lennox Street, and maintain view corridors along Mary Street to the park. Mr Staas considered the character of the HCA in the vicinity of the site to be more varied and open than the predominantly residential character elsewhere and that the proposal was an appropriate response to this character.

1. Ms Napier considered that the proposal replicated the height and bulk of the Dendy building, which it is agreed had a negative impact on the HCA. In her opinion, this impact would be exacerbated as the proposal would locate additional bulk closer to Mary Street and the heritage items in Lennox Street. The proposed setback from Mary Street was not sufficient to mitigate its impact on the single storey items and to conserve the scale of Mary Street. Furthermore, the proposal would have a significant adverse impact on 17 Mary Street, which is of local heritage significance. While Ms Napier did not object to the contemporary design and detailing of the proposal, she considered that its bulk and scale was not consistent with the existing or desired future character sought for the area.

Findings

1. Clause 30A of SEPP ARH requires consideration of whether the design of the development is compatible with the character of the local area. Within the visual catchment of the site, the existing character is predominantly one to two storey dwellings. The Dendy and Telstra buildings are dominant elements within this catchment but they have an adverse impact through their poor design as well as their bulk and massing. I accept the evidence of council's experts that the design of the development should not respond to the character of the Dendy and Telstra buildings but rather to that of the buildings within the HCA, which contribute to the area and are unlikely to be redeveloped. Particularly, the adjoining buildings to the south being the single storey cottage at 17 Mary Street and the two storey terraces at 11-15 Mary Street as well as the row of single storey terraces to the west at 38-84 Lennox, which are heritage items. The park opposite the site creates an openness, which enables the relationship of the proposal and these buildings to be viewed from a number of vantage points.

1. The desired future character is established by the height and FSR controls for the area in the LEP, as well as the heritage controls in the LEP and DCP. While it is not unreasonable to expect that part of the proposed development can achieve a height of 14m it is not reasonable to expect that an envelope established by this height control with limited setbacks from the site's boundaries can be filled and that the proposal can exceed the permissible FSR to the extent proposed. Clearly a building with less FSR could be more responsive to the character of the local area, through measures such as greater setbacks and reduced height to better respond to the constraints of the streetscape, the scale of 38-84 Lennox and 17 Mary Street, as well as solar access to its courtyard and living areas.

1. While it is desirable to screen the blank wall of the Dendy building, it is not necessary to achieve this by extending its bulk for a greater distance along the park and closer to Mary Street. This bulk would also adversely impact on the amenity of 17 Mary Street through loss of solar access and further enclosure of its rear courtyard and living areas. 17 Mary Street is also within the B2 Local Centre and, as a dwelling is a non conforming use. However, I do not accept that this justifies the adverse impacts on the amenity of 17 Mary Street, given that the development exceeds the permissible FSR and there is scope to reduce its bulk, even if solar access cannot be retained.

1. For these reasons, I find that the design of the development is not compatible with the character of the local area to the extent that it would warrant approval of the application.

Other issues

1. For the above reasons, I have found that the proposal is not compatible with the character of the local area, principally due to its bulk resulting from its FSR, it is therefore not necessary for me to review the cl 4.6 request for an exemption to the FSR standard, which would be a precondition to granting consent, or the other issues in dispute between the parties.

Orders

1. The appeal is dismissed.

2. The development application for alterations and additions to an existing building for use as a boarding house with ground floor commercial at 19 Mary Street, Newtown, is refused.

3. The exhibits, except Exhibit 3, are returned.

Annelise Tuor

Commissioner of the Court

**********

Decision last updated: 07 January 2014